Bauman v. Daimlerchrysler Corp ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA BAUMAN; GREGORY 
GRIECO; JOSEFINA NUNEZ; GABRIELE
NUNEZ; MIRIAM NUNEZ; SILVIA
NUNEZ; EMILIO GUILLERMO PESCE;
MIRTA HAYDEE ARENAS; GRACIELA
GIGENA; GUILLERMO ALBERTO
GIGENA; NURIA GIGENA; AMELIA
SCHIAFFO; ELBA LEICHNER;
ANUNCIACION SPALTRO DE No. 07-15386
BELMONTE; HECTOR RATTO;
EDUARDO OLASIREGUI; RICARDO  D.C. No.
CV-04-00194-RMW
MARTIN HOFFMAN; EDUARDO
ESTIVILLE; ALFREDO MANUEL OPINION
MARTIN; JUAN JOSE MARTIN; JOSE
BARREIRO; ALEJANDRO DAER,
Plaintiffs-Appellants,
v.
DAIMLERCHRYSLER CORPORATION;
DAIMLERCHRYSLER AG,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
October 21, 2008—San Francisco, California
Filed August 28, 2009
Before: Mary M. Schroeder, Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
11997
11998 BAUMAN v. DAIMLERCHRYSLER
Opinion by Judge D.W. Nelson;
Dissent by Judge Reinhardt
12000 BAUMAN v. DAIMLERCHRYSLER
COUNSEL
Terry Collingsworth and Natacha Thys, International Rights
Advocates, Washington, D.C., for the plaintiffs-appellants.
Matthew J. Kemner, Carroll, Burdick & McDonough LLP,
San Francisco, California, for the defendant-appellee.
BAUMAN v. DAIMLERCHRYSLER 12001
OPINION
D.W. NELSON, Senior Circuit Judge:
Barbara Bauman and 22 other Argentinian residents filed a
lawsuit under the Alien Tort Claims Act against Daimler-
Chrysler AG for human rights violations allegedly committed
by Mercedes Benz Argentina, its subsidiary, in Argentina dur-
ing the 1970s military regime. DaimlerChrysler AG filed a
successful Rule 12(b)(2) motion, the lawsuit was dismissed
for lack of personal jurisdiction, and this appeal ensued. We
affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellants are 23 Argentinian citizens and residents1 who
allege, inter alia, that they (or their family members) were
kidnapped, detained, or tortured by Argentinian state security
forces acting at the direction of their former employer, Mer-
cedes Benz Argentina (“MBA”). Appellants allege that during
the military regime that governed Argentina from 1976 to
1983, MBA officials maintained close ties with high-ranking
members of the military, and utilized these forces to rid its
plant of individuals MBA itself viewed as subversive.
In 2004, appellants filed a complaint in the District Court
for the Northern District of California against DaimlerChrys-
ler AG (“DCAG”), MBA’s parent company, requesting relief.
In April 2005, DCAG filed a Motion to Dismiss for Lack of
Personal Jurisdiction in California.
DCAG is a German stock company with its principal seat
in Stuttgart, Germany. Mercedes Benz USA, LLC
(“MBUSA”) is a Delaware limited liability company with its
principal place of business in New Jersey. MBUSA is a
1
One appellant is a citizen of Chile, although he also resides in Argen-
tina.
12002 BAUMAN v. DAIMLERCHRYSLER
wholly-owned subsidiary of the DaimerChrysler North Amer-
ica Holding Corporation, a holding company, which, in turn,
is a subsidiary of DCAG. MBUSA has two offices in Califor-
nia, and it is undisputed that MBUSA is subject to general
jurisdiction in the state.
DCAG manufactures Mercedes Benz motor vehicles and
related component parts. MBUSA is not involved in the
design or production of the vehicles. Rather, MBUSA is
responsible for the marketing and distribution of the vehicles
in California, in addition to providing service and sales sup-
port. DCAG sells its vehicles, manufactured in Germany, to
MBUSA in Germany, where title passes.
Between 1952 and 1957, an independent distributor named
Max Hoffman was the sole distributor of Mercedes Benz
vehicles in the United States. In 1958, Hoffman was replaced
by an independent subsidiary of the Studebaker-Packard Cor-
poration. In 1964, that company went out of business, and dis-
tribution was subsequently undertaken by the predecessor-in-
interest to MBUSA.
According to the Vice-President of DCAG, DCAG could
not distribute vehicles in California without revising its busi-
ness model, employing a considerable number of individuals,
making massive investments in new facilities, and incurring
significant tax exposure. DCAG also presented evidence that
the most profitable Toyota distributor in the United States,
Southeast Toyota Distributors, is a wholly independent, non-
subsidiary distributor.
The DCAG-MBUSA relationship is governed by a General
Distributor Agreement (“the Agreement”). Under the Agree-
ment, both parties agree upon objectives to be reached by
MBUSA prior to each Sales Period. Either company may ter-
minate the Agreement for good cause and with notice to the
other party. In the event of termination, all amounts owed by
BAUMAN v. DAIMLERCHRYSLER 12003
either party would be immediately due, and DCAG would be
required to repurchase all vehicles and parts.
DCAG has no control over the product’s ultimate destina-
tion within the United States. Until 2001, MBUSA indepen-
dently decided against buying DCAG G-Class vehicles in
California, and those automobiles were therefore sold to an
independent and unrelated company.
Upon request by DCAG, MBUSA must provide all infor-
mation relevant to the financial condition, management, own-
ership, business practices, and corporate reputation of
authorized resellers, as well as copies of all relevant agree-
ments, its comprehensive advertising and marketing plan, and
its balance sheets.
MBUSA must also comply with the standards designated
by DCAG as binding, although any change requires one
year’s notice. Marketing strategy and advertising must be
consistent with applicable standards, brand representation,
and DCAG directives, standards, and processes.
DCAG may reject proposed appointments of Authorized
Resellers, must consent before MBUSA management posi-
tions can be combined, and must approve the replacement of
key personnel. Furthermore, MBUSA must comply with
DCAG instructions to modify or alter any of their agreements
with Resellers. Offices, sales, and service facilities must be at
approved locations and must comply with DCAG require-
ments. Finally, DCAG reserves the right to approve or disap-
prove of the type, design, and size of signage.
On November 22, 2005, the District Court issued an order
tentatively granting DCAG’s motion. The court found that (1)
DCAG did not have continuous and systematic contacts via
the contacts of MBUSA under agency jurisdiction; and (2) the
exercise of jurisdiction would be unreasonable, considering
(a) the extent of DCAG’s purposeful interjection, (b) the bur-
12004 BAUMAN v. DAIMLERCHRYSLER
den on DCAG, (c) conflicts with the sovereignty of Argentina
and Germany, (d) California’s interest in adjudicating the dis-
pute, (e) the availability of alternative fora, (f) efficient judi-
cial resolution, and (g) the need to give convenient and
effective relief to the plaintiffs.2
The court’s ruling, however, was tentative and it ordered
limited jurisdictional discovery on: (1) whether an agency
relationship existed between DCAG and MBUSA, and (2) the
ability of the appellants to pursue their claims in Germany or
Argentina. In its Supplemental Opposition to the Motion, after
discovery, appellants addressed the agency relationship and
alternative fora as requested. They also argued that jurisdic-
tion should be conferred upon DCAG because of its contacts
with the United States as a whole, pursuant to Fed. R. Civ. P.
4(k)(2), and requested, in the alternative, that the District
Court transfer the case to Michigan if it found that it did not
have personal jurisdiction over DCAG.
On February 12, 2007, the court concluded that its earlier
ruling was correct and granted the motion to dismiss. In its
final order, it found that (1) MBUSA was not DCAG’s agent
for the purpose of conferring general jurisdiction, and (2) both
Germany and Argentina provided an adequate forum for
appellants’ claims. The court did not consider the 4(k)(2) and
change of venue arguments because both exceeded the scope
of its supplemental briefing order. The appellants timely
appealed, asserting that the District Court erred in finding that
it lacked jurisdiction over DCAG, and alleging various proce-
dural defects in the lower court’s ruling.
JURISDICTION
The parties dispute whether there is subject matter jurisdic-
2
The court also found that DCAG did not, in and of itself, have “contin-
uous and systematic” contacts with California sufficient to confer general
jurisdiction. This finding was not appealed.
BAUMAN v. DAIMLERCHRYSLER 12005
tion over appellants’ claim pursuant to the Alien Tort Claims
Act and the Torture Victims Protection Act. 28 U.S.C.
§ 1350. The District Court held that it would resolve the ques-
tion of personal jurisdiction first. This exercise of discretion
was proper. See Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 431 (2007) (“There is no mandatory
sequencing of jurisdictional issues . . . . [A] federal court has
leeway to choose among threshold grounds for denying audi-
ence to a case on the merits.”) (internal quotations omitted);
see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588
(1999).
STANDARD OF REVIEW
This court reviews a dismissal for lack of personal jurisdic-
tion de novo. Butcher’s Union, Local No. 498 v. SDC Inv.,
Inc., 788 F.2d 535, 538 (9th Cir. 1986). The district court’s
decision to dismiss or transfer a case pursuant to 28 U.S.C.
§ 1406(a) is reviewed for abuse of discretion. See King v.
Russell, 963 F.2d 1301, 1304 (9th Cir. 1992).
“It is the plaintiff ’s burden to establish the court’s personal
jurisdiction over a defendant.” Doe v. Unocal Corp., 248 F.3d
915, 922 (9th Cir. 2001). When, as here, the district court
“ ‘rel[ies] on affidavits and discovery materials without hold-
ing an evidentiary hearing, dismissal is appropriate only if the
plaintiff has not made a prima facie showing of personal juris-
diction.’ ” See Am. Tel. & Tel. Co. v. Compagnie Bruxelles
Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (quoting Fields v.
Sedgwick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir.
1986)). “[C]onflicts between the facts contained in the par-
ties’ affidavits must be resolved in . . . [plaintiff ’s] favor.’ ”
Id. (internal quotations omitted).
DISCUSSION
“Personal jurisdiction over a nonresident defendant is
tested by a two-part analysis.” Chan v. Soc’y Expeditions,
12006 BAUMAN v. DAIMLERCHRYSLER
Inc., 39 F.3d 1398, 1404 (9th Cir. 1994). “First, the exercise
of jurisdiction must satisfy the requirements of the applicable
state long-arm statute.” Id. “Second, the exercise of jurisdic-
tion must comport with federal due process.” Id. at 1404-05.
“[B]ecause California’s long arm statute is coextensive with
the limits of due process, the court need only consider the
requirements of due process.” Synopsys, Inc. v. Ricoh Co.,
343 F. Supp. 2d 883, 886 (N.D. Cal. 2003).
Due process requires that a nonresident defendant have cer-
tain minimum contacts with the forum state so that the exer-
cise of jurisdiction does not offend traditional notions of fair
play and substantial justice. Int’l Shoe Co. v. Wash., 326 U.S.
310, 316 (1945). Where the claim does not arise out of a
defendant’s contacts with the forum, there is no specific juris-
diction. However, “[i]f the defendant’s activities in the forum
are substantial, continuous and systematic, general jurisdic-
tion is available.” Unocal, 248 F.3d at 923. “In addition to
establishing the requisite contacts, the assertion of jurisdiction
must be found reasonable.” In re Phenylpropanolamine
Prods. Liab. Litig., 344 F. Supp. 2d 686, 690 (W.D. Wash.
2003).
A. AGENCY JURISDICTION
Appellants argue that the continuous and systematic con-
tacts of MBUSA, a subsidiary, should be attributed to DCAG,
its parent, because MBUSA was its agent for purposes of per-
sonal jurisdiction.
“The existence of a relationship between a parent company
and its subsidiaries[, however,] is not sufficient to establish
personal jurisdiction over the parent on the basis of the sub-
sidiaries’ minimum contacts with the forum.” Unocal, 248
F.3d at 925. “[A] parent corporation may be directly involved
in the activities of its subsidiaries without incurring liability
so long as that involvement is consistent with the parent’s
investor status.” Id. at 926 (internal quotations omitted).
BAUMAN v. DAIMLERCHRYSLER 12007
1. AGENCY DOCTRINE
[1] In Unocal, we described our agency doctrine, by which
the contacts of a subsidiary may be imputed to the parent. 248
F.3d at 928-31. “To satisfy the agency test, the plaintiff must
make a prima facie showing that the subsidiary represents the
parent corporation by performing services ‘sufficiently impor-
tant to the [parent] corporation that if it did not have a repre-
sentative to perform them, the [parent] . . . would undertake
to perform substantially similar services.’ ” Harris Rutsky &
Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,
1135 (9th Cir. 2003) (quoting Chan, 39 F.3d at 1405). The
“test permits the imputation of contacts where the subsidiary
was ‘either established for, or is engaged in, activities that,
but for the existence of the subsidiary, the parent would have
to undertake itself.’ ” Id. (internal quotations omitted).
[2] The Unocal “court distinguished an agency relationship
between a parent and its subsidiary from that of a holding
company and its subsidiary, explaining that in the case of a
holding company the parent could simply hold another type
of subsidiary.” 248 F.3d at 929 (citing Gallagher v. Mazda
Motor of Am., Inc., 781 F. Supp. 1079, 1085 (E.D. Pa. 1992))
(emphasis added). If “the business of the parent is the busi-
ness of investment,” then the subsidiaries do not conduct busi-
ness as agents. Id. (internal citations omitted). “Where, on the
other hand, the subsidiaries are created by the parent, for tax
or corporate finance purposes, there is no basis for distin-
guishing between the business of the parent and the business
of the subsidiaries.’ ” Id. “The doctrine supports the exercise
of jurisdiction when the local subsidiary performs a function
that is compatible with, and assists the parent in the pursuit of,
the parent’s own business.” Sonora, 83 Cal. App. 4th at 543.
[3] To that end, “[a]ppropriate parental involvement
includes: monitoring of the subsidiary’s performance, super-
vision of the subsidiary’s finance and capital budget deci-
sions, and articulation of general policies and procedures.”
12008 BAUMAN v. DAIMLERCHRYSLER
Unocal, 248 F.3d at 926 (internal quotations omitted). “[I]t is
entirely appropriate for directors of a parent corporation to
serve as directors of its subsidiary, and that fact alone may not
serve to expose the parent corporation to liability.” Id. Simi-
larly, consolidated reports are not dispositive. Id. at 929.
2. THE ISSUE OF CONTROL
Although appellants later conceded that pervasive control
is also necessary to confer agency jurisdiction, the parties ini-
tially disputed this issue. This court’s decision in Unocal, read
in isolation, has given rise to some confusion. The beginning
of the opinion refers to the need for control. See, e.g., id. at
926 (“An alter ego or agency relationship is typified by paren-
tal control of the subsidiary’s internal affairs or daily opera-
tions.”) (emphasis added). The opinion, however, did not
discuss control further. See id. In Modesto City Sch. v. Riso
Kagaku Corp., the District Court for the Eastern District of
California found that control was not required by Unocal. 157
F. Supp. 2d 1128, 1133 (E.D. Cal. 2001) (“Read in isolation,
certain phrases suggest that such may be the case; however,
read in context and in relation to other Ninth Circuit deci-
sions, the court finds that day-to-day control is not an element
of the general agency test in the Ninth Circuit.”). Other dis-
trict courts, citing Modesto, have followed suit. See, e.g., In
re W. States Wholesale Natural Gas Litig., 605 F. Supp. 2d
1118, 1134-38 (D. Nev. 2009); Synopsys, 343 F. Supp. 2d at
887; see also Phenylpropanolamine, 344 F. Supp. 2d at 694(recognizing the conflict between Unocal and Modesto).
[4] We write to clarify our law in the area of agency juris-
diction because the Modesto court misinterpreted Unocal. A
determination of agency jurisdiction requires a two-step anal-
ysis. First, the parent must exert control that is so pervasive
and continual that the subsidiary may be considered an agent
or instrumentality of the parent, notwithstanding the mainte-
nance of corporate formalities. Control must be over and
above that to be expected as an incident of ownership. Sec-
BAUMAN v. DAIMLERCHRYSLER 12009
ond, the agent-subsidiary must also be sufficiently important
to the parent corporation that if it did not have a representa-
tive, the parent corporation would undertake to perform sub-
stantially similar services. See Rutsky, 328 F.3d at 1135.
[5] As an initial matter, a review of our cases reveals that
control has always been relevant to an agency determination.
See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d
406, 419 (9th Cir. 1977) (“[E]stablishment of the requisite
‘agency’ control may be even easier when a parent-subsidiary
relationship is involved.”) (emphasis added); Kramer Motors,
Inc. v. British Leyland, Ltd., 628 F.2d 1175, 1177 (9th Cir.
1980) (“These facts are insufficient to make . . . [the parent]
an ‘alter ego’ or ‘agent’ . . . [because] [n]one of the . . . com-
panies controls the internal affairs . . . or determines how it
operates on a daily basis.”) (emphasis added); Rutsky, 328
F.3d at 1135 (“Such activity might well be properly character-
ized as inconsistent with the parent corporation’s investor sta-
tus, and more like control over day-to-day activities.”)
(emphasis added). Thus, before Unocal and consistent with it,
this court had already indicated that a high degree of control
is necessary to confer agency jurisdiction.
[6] Secondly, under common law principles, control is the
sine qua non of agency. See RESTATEMENT (THIRD) OF AGENCY
§ 1.01 cmt. c (2006) (“A relationship is not one of agency
within the common-law definition unless . . . the principal has
the right . . . to control the agent’s acts.”).
[7] Finally, other circuits considering the issue have held
that the right to control is of consequence to agency jurisdic-
tion, although the cases vary as to what precise role it plays.
See, e.g., Purdue Research Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773, 788 (7th Cir. 2003) (Plaintiff “has not demon-
strated that . . . [defendant] exerts an unusually high degree
of control.”); Jazini v. Nissan Motor Co., 148 F.3d 181, 185
(2d Cir. 1998) (control as one of several factors); Hargrave
v. Fibreboard Corp., 710 F.2d 1154, 1160 (5th Cir. 1983)
12010 BAUMAN v. DAIMLERCHRYSLER
(conflating agency and alter ego jurisdiction but requiring
control for both).
3. APPLICATION TO DCAG
[8] We now turn to the facts of this case. In determining
whether or not DCAG exerts control that is so pervasive and
continual that MBUSA may be considered an agent of
DCAG, it is necessary to turn to the terms of the Agreement.
The requirements that MBUSA provide detailed information
and comply with general marketing standards are consistent
with the “monitoring” and “articulation of general policies”
permitted under our law. See Unocal, 248 F.3d at 926. Fur-
thermore, although DCAG articulates some specific policies
for MBUSA, the Agreement was terminable, MBUSA goals
are negotiated by both parties, and title to the cars passes in
Germany. DCAG has no control over the product’s ultimate
destination within the United States, and the evidence shows
that MBUSA had the power to independently decide against
buying DCAG G-Class vehicles in California. This is not per-
vasive and continual control.
Even if DCAG did exert pervasive control, appellants have
also failed to make a prima facie showing that DCAG would
undertake to perform substantially similar services in the
absence of MBUSA. It is true that the question is close.
Although DCAG points to the costs of distribution and the
accompanying tax exposure, “[w]here . . . subsidiaries are cre-
ated by the parent[ ] for tax or corporate finance purposes,
there is no basis for distinguishing between the business of the
parent and the business of the subsidaries.” See Unocal, 248
F.3d at 929. DCAG does not appear to own MBUSA solely
as an investment; rather, MBUSA markets and sells cars pro-
duced by DCAG, thus “perform[ing] a function that is com-
patible with, and assists . . . [DCAG] in the pursuit of . . . [its]
own business.” See Sonora, 83 Cal. App. 4th at 543. The evi-
dence that DCAG has previously used independent distribu-
tors, however, along with Toyota’s successful use of
BAUMAN v. DAIMLERCHRYSLER 12011
autonomous distributors, militates against a finding that with-
out MBUSA, DCAG would personally market and distribute
vehicles in California.
[9] Because there is insufficient control and because
MBUSA does not serve as DCAG’s representative, the con-
tacts of MBUSA cannot be imputed to DCAG.
B. REASONABLENESS OF JURISDICTION
“In addition to establishing the requisite contacts, the asser-
tion of jurisdiction must be found reasonable.” Phenylpro-
panolamine, 344 F. Supp. 2d at 690. Because we find that
DCAG did not have continuous and systematic contacts suffi-
cient to confer general jurisdiction, we need not reach the
question of reasonableness. We also need not reach DCAG’s
request that some of the evidence bearing on reasonableness
be disregarded.
C. PROCEDURAL ISSUES
1. IMPROPER CONVERSION OF DCAG’S
MOTION TO DISMISS FOR LACK OF PERSONAL
JURISDICTION INTO A MOTION TO DISMISS
BASED ON FORUM NON CONVENIENS
Appellants assert that the District Court improperly con-
verted the defendant’s motion to dismiss for lack of personal
jurisdiction into a de facto dismissal on forum non conveniens
grounds because its final order discussed only the adequacy
of alternative fora.
[10] Appellants mischaracterize the underlying record.
Although the final order only discussed the agency relation-
ship and the alternative fora, the District Court considered the
other reasonableness factors in its earlier tentative ruling.
Because “[a]n appeal from a final judgment draws in question
all earlier, non-final orders and rulings which produced the
12012 BAUMAN v. DAIMLERCHRYSLER
judgment,” Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th
Cir. 1984), the District Court did not convert DCAG’s motion
into a de facto forum non conveniens motion.
2. REFUSAL TO CONSIDER APPELLANTS’
ARGUMENT FOR A FINDING OF PERSONAL
JURISDICTION PURSUANT TO FED. R. CIV. P.
4(k)(2) OR ITS REQUEST FOR TRANSFER TO
MICHIGAN
The District Court did not address either appellants’ asser-
tion that the court had jurisdiction over DCAG pursuant to
Fed. R. Civ. P. 4(k)(2), or their request for transfer, because
both exceeded the scope of the supplemental briefing order.
According to the Local Court Rules for the Northern Dis-
trict of California, “once a reply is filed, no additional memo-
randa, papers or letters may be filed without prior Court
approval.” N.D. CAL. CIV. R. 7-3(d); see also Spacey v. Bur-
gar, 207 F. Supp. 2d 1037, 1053-54 (C.D. Cal. 2001) (deny-
ing plaintiff ’s motion to reconsider due to newly presented
evidence of 4(k)(2) jurisdiction “because . . . [plaintiff] made
a deliberate choice not to include the argument in his initial
opposition to Defendant’s Motion”).
Furthermore, if a party first raises an issue “in a motion
which the district court refused to consider because it was
untimely and in contravention of local rules,” and does not
appeal the district court’s procedural ruling, the issue is
waived. Palmer v. IRS, 116 F.3d 1309, 1312-13 (9th Cir.
1997) (emphasis added).
[11] When the District Court issued its tentative ruling in
favor of DCAG, it requested supplemental briefing solely on
the agency relationship and the adequacy of alternative fora.
The 4(k)(2) argument and request for transfer were, therefore,
in contravention of the local rules. See N.D. CAL. CIV. R. 7-
3(d). Regardless, because appellants repeated their substantive
BAUMAN v. DAIMLERCHRYSLER 12013
argument rather than address the procedural ruling in their
brief, this argument is waived. See Palmer, 116 F.3d at
1312-13.
CONCLUSION
For the foregoing reasons, we find that the District Court
did not have personal jurisdiction over DCAG. We therefore
AFFIRM the District Court’s order.
AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
The majority has formulated a stringent new test for deter-
mining whether an agency relationship exists for the purposes
of establishing personal jurisdiction. Although the majority’s
goal of providing some clarity to our rather muddled case law
on the subject is laudable, the test it imposes goes too far,
requiring a much stronger relationship between parent and
subsidiary than is necessary or desirable. The result is to
shield foreign corporations from actions in American courts
— although they have structured their affairs so as to reap
vast profits from American markets — and to deprive plain-
tiffs, including those who allege grave human rights abuses,
of access to justice. Accordingly, I dissent.
I. Minimum Contacts
A.
Under our existing precedent, if one of two tests is satis-
fied, we may find minimum contacts to support the exercise
of personal jurisdiction over a foreign parent company by vir-
tue of its relationship to a subsidiary that has continual opera-
12014 BAUMAN v. DAIMLERCHRYSLER
tions in the forum. The first test, not directly at issue here, is
the “alter ego” test. It is predicated upon a showing of control:
[T]he plaintiff must make out a prima facie case (1)
that there is such unity of interest and ownership that
the separate personalities of the two entities no lon-
ger exist and (2) that failure to disregard their sepa-
rate identities would result in fraud or injustice. The
first prong of this test has alternately been stated as
requiring a showing that the parent controls the sub-
sidiary to such a degree as to render the latter the
mere instrumentality of the former.
Doe v. Unocal Corp., 248 F.3d 915, 926 (9th Cir. 2001)
(internal citations, quotation marks, and brackets omitted).
The second test is the “agency” test. It, by contrast, is predi-
cated upon a showing of the special importance of the ser-
vices performed by the subsidiary:
The agency test is satisfied by a showing that the
subsidiary functions as the parent corporation’s rep-
resentative in that it performs services that are suffi-
ciently important to the foreign corporation that if it
did not have a representative to perform them, the
corporation’s own officials would undertake to per-
form substantially similar services.
Id. at 928 (quoting Chan v. Society Expeditions, Inc., 39 F.3d
1398, 1405 (9th Cir. 1994)) (quotation marks omitted); see
also Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clem-
ents Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003).
The principal focus of the agency test for purposes of per-
sonal jurisdiction, therefore, is not “control” — much less
“pervasive and continual” control, Maj. Op. at 12008-09 —
but rather the relative importance of the services provided to
the parent corporation. The cases that might be read to require
a stronger showing of control use such language imprecisely,
BAUMAN v. DAIMLERCHRYSLER 12015
describing both the agency and alter ego tests without differ-
entiating between them. See, e.g., Unocal, 248 F.3d at 926(“An alter ego or agency relationship is typified by parental
control of the subsidiary’s internal affairs or daily opera-
tions.”) (emphasis added); Kramer Motors, Inc. v. British Ley-
land, Ltd., 628 F.2d 1175, 1177 (9th Cir. 1980) (per curiam)
(“These facts are insufficient to make . . . [the parent] an ‘alter
ego’ or ‘agent’ . . . [because] [n]one of the . . . companies
controls the internal affairs . . . or determines how it operates
on a daily basis.”) (emphasis added). The majority’s “perva-
sive and continual” control standard compounds this confu-
sion by conflating the alter ego and agency tests, with the
result that it is difficult to conceive of a situation in which the
subsidiary would be the agent of its parent and not the alter
ego.
To be sure, control should play some role — albeit a sec-
ondary one — in determining whether personal jurisdiction is
established. This is so because control is a traditional element
of agency under common law principles.1 Even at common
law, however, agents may exercise a considerable amount of
discretion in performing their functions. See Restatement
(Third) of Agency § 2.01, cmt. d. It is not the case, as the
majority holds, that “the parent must exert control that is . . .
pervasive and continual . . . .“ Maj. Op. at 12008-09 (empha-
sis added). Indeed, the principal need not exercise control at
all in order to preserve an agency relationship; the relevant
inquiry, rather, is whether the principal has the right to con-
1
Even Modesto, the district court decision that most emphatically rejects
a strict requirement of control under the agency test, does not suggest oth-
erwise. See Modesto City Schools v. Riso Kagaku Corp., 157 F. Supp. 2d
1128, 1134 (E. D. Cal. 2001) (“In so holding this court does not suggest
that control is wholly irrelevant to the general agency test. Rather, the
court finds that it is not the sine qua non of the general agency test.”). The
majority incorrectly states that Modesto held that “control was not
required by Unocal.” Maj. Op. at 12008 (emphasis in original). In fact,
Modesto held that day-to-day control was not required by Unocal — quite
a distinct proposition. See Modesto, F. Supp. 2d at 1133.
12016 BAUMAN v. DAIMLERCHRYSLER
trol. See, e.g., In re Coupon Clearing Service, Inc., 113 F.3d
1091, 1099 (9th Cir. 2005) (“The right to control, rather than
its exercise is sufficient to meet this standard.”). As explained
in the Restatement (Third) of Agency:
A principal’s right to control the agent is a constant
across relationships of agency, but the content or
specific meaning of the right varies. Thus, a person
may be an agent although the principal lacks the
right to control the full range of the agent’s activi-
ties, how the agent uses time, or the agent’s exercise
of professional judgment. A principal’s failure to
exercise the right of control does not eliminate it, nor
is it eliminated by physical distance between the
agent and principal . . . .
§ 1.01 cmt c (2006).
The level of control required by the majority is excessive,
therefore, even for purposes of considering traditional ques-
tions of liability. But we should in any event require a less
stringent showing of control for the limited purpose of estab-
lishing personal jurisdiction, for at least two reasons. First,
according to the majority “control” is but one part of a two-
pronged agency test for the purposes of establishing personal
jurisdiction; we must also determine that the services are “suf-
ficiently important.” See Unocal, 248 F.3d at 928; Harris
Rutsky, 328 F.3d at 1135. Outside the context of personal
jurisdiction, we do not require this double showing in order
to establish an agency relationship: the tasks to be performed
by the agent on behalf of the principal need not be of any spe-
cial importance. See, e.g., Batzel v. Smith, 333 F.3d 1018,
1036 (9th Cir. 2003); Restatement (Third) of Agency § 1.01
(2006). By compounding a strict control requirement with a
requirement that the services be “sufficiently important,” the
majority has established a test for agency that is significantly
more stringent for purposes of personal jurisdiction than the
test for purposes of liability.
BAUMAN v. DAIMLERCHRYSLER 12017
We must remember that here, we are establishing a test for
agency in a specialized context. We are not asked to deter-
mine the contours of vicarious liability, or to hold DCAG
financially liable for the actions of MBUSA. We are deciding
one question, only: whether DCAG has sufficient “minimum
contacts with [the forum state] such that the maintenance of
the suit does not offend ‘traditional notions of fair play and
substantial justice.’ ” International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quotation omitted). Indeed, our
tests for agency and alter ego when the issue is jurisdictional
“are merely shorthand devices for defining what constitutes
traditional notions of fair play and substantial justice for pur-
poses of the due process analysis of International Shoe based
upon the parent-subsidiary relationship.” In re Telectronics
Pacing Systems, Inc., 953 F. Supp. 909, 919 (S.D. Ohio
1997). Fairness is not well served in such cases by a stringent
test based on a narrow, overly formalistic conception of day-
to-day corporate control.
In an increasingly complex and globalized economy, corpo-
rations such as DCAG reap enormous profits from the sale of
their goods in the United States, achieved through the use of
distributors, frequently in the form of subsidiaries. Many mul-
tinational companies organize their corporate structure and
acquire subsidiaries for the sole purpose of obtaining a maxi-
mal benefit from the American market. DCAG, for instance,
has earned 45% of its annual revenue from its sales in the
United States. 2.4% of its total sales in 2004 were in Califor-
nia. Given these realities, and the continually evolving ways
of doing business in an international arena, it is a mistake for
the majority to formalize and rigidify our test for personal
jurisdiction with an over-emphasis on control. As noted by
our highly-regarded colleague from New York, Jack Wein-
stein, nearly three decades ago, such rigid formalism does not
map well onto the realities of the business world:
[D]ifferent control relationships inhere in different
multinational structures, and we lose sight of the
12018 BAUMAN v. DAIMLERCHRYSLER
economic realities if we insist on masking these dis-
tinctions behind simplistic formulae. The kind of
“day-to-day control”, to the extent such a nebulous
concept can be made concrete, will vary depending
on the kind of subsidiary involved. Thus, while
“day-to-day control” might be required to attribute
the activities of a relatively autonomous manufactur-
ing subsidiary to its conglomerate parent, this by no
means implies such a requirement as to a wholly-
owned sales and marketing subsidiary which is the
conduit for the sales of a single product in the New
York market.
Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F.Supp.
1322, 1343 (E.D.N.Y. 1981) (Weinstein, J.). Our inquiry
should be flexible enough to allow us to determine, on the
basis of corporate realities rather than formalistic legal rules,
whether it is fair to bring a parent company into court in the
United States.
Under the more flexible approach that I would employ, the
degree of control that DCAG exercises over MBUSA would
be more than sufficient for the purposes of establishing per-
sonal jurisdiction. The evidence adduced may, in fact, support
a finding of control even under the majority’s overly stringent
test. The following list details, at a minimum, the ways in
which DCAG has the power to control MBUSA’s activities:
• MBUSA must comply with all DCAG “direc-
tives, standards and processes,” in its promotion
and advertising, which include directives regard-
ing type, design, and size of the signs used by
MBUSA.
• MBUSA must submit, at least three months prior
to the commencement of each Sales Period, its
comprehensive advertising and marketing plan
for DCAG’s review and approval.
BAUMAN v. DAIMLERCHRYSLER 12019
• MBUSA must keep DCAG informed of all mar-
keting, advertising, and promotional activities it
implements as well as the results of such activi-
ties.
• DCAG owns 100% of the capital stock of
MBUSA.
• DCAG retains full ownership of “Mercedes-
Benz” trademark.
• MBUSA is required to use the DCAG financial
system and maintain records and operating
reports based on the standards set forth by
DCAG.
• MBUSA must receive approval from DCAG
before entering into an agreement with any “Au-
thorized Reseller,” and after agreement, must
approve the location of “each retail sales outlet,
showroom and service facility.” “DCAG may, in
its sole discretion, reject any such proposed
appointment.”
• MBUSA must obtain approval from DCAG to
replace key personnel (including the CEO).
• DCAG provides the warranty terms for vehicles
to consumers.
• MBUSA cannot make alterations to the cars
without prior approval, other than alterations
ordered by specific customers in connection with
vehicles purchased by those customers.
• MBUSA can use only DCAG-supplied parts
when repairing or maintaining its own vehicles.
12020 BAUMAN v. DAIMLERCHRYSLER
• DCAG can compel MBUSA to engage in dealer
advertising programs and parts merchandising
programs.
• MBUSA must keep DCAG updated on all pro-
motional materials it uses. MBUSA must adhere
to the details of signage and marketing specifica-
tions as set out by DCAG, including the type,
design, and size of MBUSA’s and Authorized
Resalers’ signage.
• DCAG employees hold senior decision-making
positions within the MBUSA Board of Directors.
• MBUSA must collect customer data and furnish
periodic reports, upon request from DCAG.
• MBUSA works closely with DCAG to ensure
regulatory compliance regarding manufacturing,
sales, and legal requirements.
All of these provisions support the conclusion that DCAG is
involved in — and has the power to exert sufficient control
over — key aspects of MBUSA’s operations. If the services
that MBUSA provides are “sufficiently important,” — and I
turn to that question next — lack of more “control” than
DCAG possesses here should be no bar to personal jurisdic-
tion.
B.
This brings me to the remainder of my disagreement with
the majority opinion. The evidence that DCAG has previously
used independent distributors to facilitate its car sales in the
United States, along with Toyota’s successful use of autono-
mous distributors, does not undermine the conclusion that
there is an agency relationship between MBUSA and DCAG
for purposes of establishing personal jurisdiction.
BAUMAN v. DAIMLERCHRYSLER 12021
As an initial matter, the parties dispute whether DCAG
would be able to rely successfully on the services of indepen-
dent distributors to market and sell cars in the United States
should it terminate its relationship with MBUSA. Although
Toyota has used independent distributors successfully, previ-
ous efforts to do so by DCAG’s predecessor failed, and it is
entirely speculative that future efforts would succeed.
DCAG’s capacity to sell cars without a wholly-owned subsid-
iary is a disputed question of fact that should have been
resolved in plaintiffs’ favor. See Am. Tel. & Tel. Co., 94 F.3d
at 588 (in determining whether there is personal jurisdiction
over the defendant, “conflicts between the facts contained in
the parties’ affidavits must be resolved in . . . [plaintiff ’s]
favor”).
More important, however, under the agency test, a subsid-
iary acts as an agent if the parent would undertake to perform
the services itself if it had no representative at all to perform
them. Unocal, 248 F.3d at 928 (finding agency if the services
are “sufficiently important to the foreign corporation that if it
did not have a representative to perform them, the corpora-
tion’s own officials would undertake to perform substantially
similar services”) (emphasis added).2 The law does not
2
Admittedly, there is a lack of clarity and consistency in the previous
articulations of the “sufficient importance” test. Some language in Unocal
appears to require that without the particular subsidiary’s services, the
parent company would undertake the agent’s activities itself, perhaps
through the use of its own personnel. See Unocal, 248 F.3d at 928(“[C]ourts have permitted the imputation of contacts where the subsidiary
was ‘either established for, or is engaged in, activities that, but for the
existence of the subsidiary, the parent would have to undertake itself.”)
(emphasis supplied) (quoting Chan, 29 F.3d at 1405 n.9). This language
suggests that as long as the subsidiary’s services could be performed
equally effectively by an independent contractor, no agency relationship
can exist. In a complex global economy, this standard makes little sense.
Companies can outsource most necessary services to other companies to
perform on their behalf; but that does not mean that the subsidiaries per-
forming those services are not or cannot be agents of their parent compa-
nies. Accordingly, I accept the more sensible statement of the Unocal
court set forth on the same page of its opinion and quoted in the text
above.
12022 BAUMAN v. DAIMLERCHRYSLER
require that the parent would undertake to perform the ser-
vices if they were no longer to be performed by a subsidiary.
Rather the question is whether these important services would
be performed by “a representative” if the company did not
perform them itself. Independent contractors may be consid-
ered representatives under certain circumstances,3 and con-
tracting with such independent dealers to achieve the same
end — distributing cars in the United States — means, in
practice, obtaining a “representative” to “undertak[e] substan-
tially similar services.” As the services that MBUSA currently
performs are sufficiently important to DCAG that it would
undertake to perform them through other means if MBUSA
did not exist, whether through a non-subsidiary distributor
(i.e., another representative) or by using its own personnel,
the agency test has been met.
C.
The parties here agree that MBUSA’s contacts with Califor-
nia warrant the exercise of general jurisdiction. In other
words, its “continuous corporate operations within [the] state
are . . . so substantial and of such a nature as to justify suit
against the defendant on causes of action arising from deal-
ings entirely distinct from those activities.” Tuazon v. R.J.
Reynolds Tobacco Co., 433 F.3d 1163, 1169 (9th Cir. 2006)
(quoting International Shoe, 326 U.S. at 318) (internal alter-
ations omitted). Our inquiry, explained above, is as to the fair-
ness of imputing those extensive contacts to DCAG,
MBUSA’s parent. We should ask: Are the services provided
by MBUSA sufficiently important to DCAG that, if MBUSA
went out of business, DCAG would undertake to continue
3
An agent need not necessarily be a subsidiary; an independent corpora-
tion or individual may be an agent under certain circumstances, as well.
See, e.g., Wells Fargo at 419 (“There appears to be no reason why a com-
pletely independent, in-state corporation cannot be held to have acted as
an agent for another, out-of-state corporation in performing activities giv-
ing rise to a cause of action”).
BAUMAN v. DAIMLERCHRYSLER 12023
selling cars in this vast market itself or alternatively sell its
cars through a new representative or representatives? Of
lesser importance, is DCAG entitled to control MBUSA to
some degree, such that the connection necessary for the exer-
cise of personal jurisdiction has been shown? Undoubtedly,
the answer to both of these questions is yes. As Judge Wein-
stein aptly explained,
To any layman it would seem absurd that our courts
could not obtain jurisdiction over a billion dollar
multinational which is exploiting the critical New
York and American markets to keep its home pro-
duction going at a huge volume and profit. This per-
ception must have a bearing on our evaluation of
fairness. The law ignores the common sense of a sit-
uation at the peril of becoming irrelevant as an insti-
tution.
Bulova Watch Company, 508 F. Supp. at 1327.4 To the ordi-
nary American, and certainly, to this judge, it would seem
odd, indeed, that the manufacturer of Mercedes-Benz vehicles
could not be called into federal court in the state of California.
On our streets and highways, Mercedes-Benz cars are ubiqui-
tous, and Mercedes-Benz dealerships, required to display the
signage mandated by DCAG, have a highly visible presence.
DCAG makes nearly half of its sales in the United States and
4
See also Newport Components, Inc. v. NEC Home Electronics (U.S.A.),
Inc., 671 F.Supp. 1525, 1534 (C.D. Cal. 1987) (“[A]s the international
economy becomes more interdependent, the formal but artificial separa-
tion between a foreign parent corporation and its domestic subsidiary
becomes less compelling for purposes of determining personal jurisdic-
tion. Moreover, with the increasing domination of the world economy by
multinational corporations, it is appropriate to look to the parent company
(i.e., the ‘hub of the wheel’) when its subsidiaries (i.e., the ‘spokes of the
wheel’) violate substantive rights in foreign countries. The Court agrees
with this trend in the law toward greater accountability by foreign corpo-
rate entities, and will accordingly look to the ‘real’ rather than the ‘formal’
relationship between NEC and its subsidiaries in deciding the jurisdiction
issue.” (internal citations omitted)).
12024 BAUMAN v. DAIMLERCHRYSLER
a hefty number in California itself. To achieve these profits,
DCAG has acquired a wholly-owned subsidiary, MBUSA, to
sell its cars in the United States. Our test for personal jurisdic-
tion should not fail to take these realities into account.
II. Reasonableness
Because I would hold that there is ample evidence of an
agency relationship between DCAG and MBUSA, such that
MBUSA’s contacts with California should be imputed to
DCAG, I would move on to consider a question that the
majority has not reached: whether the assertion of jurisdiction
is “reasonable” in this case.
Because the plaintiffs (“Bauman”) have made the requisite
showing of minimum contacts in the forum state, “[t]he bur-
den . . . shifts to the defendant to present a compelling case
that jurisdiction would be unreasonable.” Sinatra v. National
Enquirer, Inc., 854 F.2d 1191, 1198 (9th Cir. 1988) (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985));
see also Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163,
1175 (9th Cir. 2006). We weigh seven factors in resolving this
question:
the extent of purposeful interjection; the burden on
the defendant; the extent of conflict with sovereignty
of the defendant’s state; the forum state’s interest in
adjudicating the suit; the most efficient judicial reso-
lution of the dispute; the convenience and effective-
ness of relief for the plaintiff; and the existence of an
alternative forum.
Sinatra, 854 F.2d at 1198-99 (citations omitted). These fac-
tors, on balance, support the exercise of personal jurisdiction
here. As the majority does not address this question, I will not
dwell on any factor for long; but I will touch upon each in
concluding that it is both reasonable and fair to exercise per-
sonal jurisdiction over DCAG.
BAUMAN v. DAIMLERCHRYSLER 12025
First, as described at length above, DCAG has purposefully
and extensively interjected itself into the California markets
through its agent, MBUSA, such that general jurisdiction is
warranted. This factor weighs strongly in favor of “reason-
ableness,” as a corporation that “has continuously and deliber-
ately exploited the [California] market . . . must reasonably
anticipate being haled into court there . . . .” Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 781 (1984).
Second, the burden on the defendant, a large corporation,
to litigate the case in California is not so weighty as to pre-
clude jurisdiction — particularly since “modern advances in
communications and transportation have significantly reduced
the burden of litigating in another country.” Sinatra, 854 F.2d
at 1199. DCAG has litigated cases in California in the past.
See, e.g., Clemens v. DaimlerChrysler Corp., 534 F.3d 1017(9th Cir. 2008). The burdens to produce records and witnesses
in California, when the events in question took place in
Argentina, would be no greater than if suit were filed in Ger-
many. This factor, while on balance weighing in DCAG’s
favor, is not particularly significant.
Third, we have held that the extent of the conflict with the
sovereignty of the defendant’s state “is not dispositive
because, if given controlling weight, it would always prevent
suit against a foreign national in a United States court.” Id.(quotation omitted). While it is true that “[g]reat care and
reserve should be exercised when extending our notions of
personal jurisdiction into the international field,” Asahi Metal
Industry Co., Ltd. v. Superior Court of California, Solano
County, 480 U.S. 102, 115 (1987), the same consideration
will always be present in claims involving the Alien Tort Stat-
ute (“ATS”) and Torture Victim Prevention Act (“TVPA”).
Although German courts have expressed some concern that
this suit may impinge upon German sovereignty, I do not
agree. DCAG has chosen to place itself at risk of litigation by
engaging in extensive business in the United States through
the operations of its agent. We do not violate Germany’s sov-
12026 BAUMAN v. DAIMLERCHRYSLER
ereignty by exercising jurisdiction to hear this suit, even
though it involves its citizen corporation. This factor again
weighs in DCAG’s favor, but not heavily.
Fourth, although the events at issue did not take place in
California and although the plaintiffs are not California resi-
dents, the forum state does have a significant interest in adju-
dicating the suit. California partakes in “the shared interest of
the several States in furthering fundamental substantive social
policies . . . . “ World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 292 (1980). Here, as the claims are predicated
upon the ATS and TVPA, that policy is providing a forum for
redress of violations of international law by aliens outside our
borders who have enough connections with the United States
to be brought to trial on our shores — “a small but important
step in the fulfillment of the ageless dream to free all people
from brutal violence.” Filartiga v. Pena-Irala, 630 F.2d 876,
890 (2d Cir. 1980). American federal courts — be they in
California or any other state — have a strong interest in adju-
dicating and redressing international human rights abuses.
See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,
106 (2d Cir. 2000) (holding, in the context of forum non con-
veniens, that the TVPA “has . . . communicated a policy that
such suits should not be facilely dismissed on the assumption
that the ostensibly foreign controversy is not our business.”).
In light of that important interest, this factor weighs in favor
of the reasonableness of exercising personal jurisdiction.
The fifth, sixth, and seventh factors are, in this case, all
influenced by whether the plaintiffs would be able to litigate
this suit in Germany or Argentina at all. Bauman contends
that Germany does not recognize human rights suits against
corporate defendants and will not allow equitable tolling.
Argentinian courts, Bauman asserts, provide no means of
redress against corporations that collaborated with Argentine
security forces in carrying out the Dirty War, and would bar
this suit on account of the statute of limitations. Most impor-
tant for our purposes is whether Argentina would be an ade-
BAUMAN v. DAIMLERCHRYSLER 12027
quate forum, as Argentina — where the events at issue in this
lawsuit took place — would be, all other factors being equal,
the most natural location in which to litigate the case.
Bauman’s arguments that Argentina would not be a fully
adequate forum — if it is a forum at all — are persuasive.
Most important, a recent Supreme Court case in Argentina has
concluded that human rights cases arising out of the Dirty
War are subject to a two-year statute of limitations. See Lar-
rabeiti Yanez, Anatole Alejandro vs. National Government, L.
795. XLI. (ROR) L. 632. XLI. APPEAL. This suit would, for
that reason, be barred — which makes Argentina unavailable
as an alternate forum. See Miracle v. N.Y.P. Holdings, Inc., 87
F. Supp. 2d 1060, 1071 (D. Haw. 2000). Even if it were possi-
ble to bring suit in Argentina, however, which appears
unlikely in light of this precedent, I cannot say that either “ef-
ficient judicial resolution of the dispute” or the “convenience
and effectiveness of relief for the plaintiff” would likely be
achieved. The Department of State has noted “credible allega-
tions of efforts by members of security forces and others to
intimidate the judiciary and witnesses.” U.S. Dep’t of State,
Argentina, Country Reports on Human Rights Practices —
2002, at 8 (Mar. 31, 2003). According to plaintiffs, they have
already suffered from intimidation for speaking out against
Mercedes-Benz Argentina and the security forces, and it is
reasonable to conclude that they might continue to be so
intimidated if they were to pursue this litigation in Argentina.
Although it is clear that production of witnesses and docu-
mentary evidence would be easier in Argentina than in the
United States, these barriers to effective relief for the plain-
tiffs are formidable.
As to Germany, there is conflicting expert testimony
whether equitable tolling, or an equivalent within the German
legal system, would allow the suit to move forward. The
answer is not clear; indeed, the district court concluded that
“it appears that plaintiffs’ claims, which are based on events
that occurred in 1976 and 1977, would not necessarily be
12028 BAUMAN v. DAIMLERCHRYSLER
time-barred.” Bauman v. Daimlerchrysler AG, No. C-04-
00194 RMW, 2007 WL 486389, at *4 (N.D. Cal. 2007)
(emphasis added) (citations omitted). I cannot, on this
unsteady legal footing, say that Germany is an adequate
forum such that personal jurisdiction elsewhere should be
defeated.
Even if Argentina and Germany were, as DCAG argues,
both adequate fora for redressing any alleged wrongs, the
availability of an alternative forum is not the single deciding
factor in the personal jurisdiction analysis. We are not here
considering exhaustion or forum non conveniens. Rather, the
question of an alternate forum is one factor among many that
we consider in deciding whether it is reasonable and fair to
bring DCAG, a foreign corporation with a general agent oper-
ating continually throughout the state of California, before a
court in this forum.
In light of DCAG’s pervasive contacts with the forum state
through its agent MBUSA, as well as the interest of California
and the federal courts in adjudicating important questions of
human rights, and our substantial doubt as to the adequacy of
either Germany or Argentina as an alternative forum, I would
hold that on this record it is entirely reasonable and consistent
with due process to exercise in personam jurisdiction over
DCAG.
III.
I would not have dismissed Bauman’s claims for want of
personal jurisdiction over DCAG. The majority’s overly strin-
gent test for agency in this context erroneously allows foreign
corporations that benefit tremendously from American mar-
kets to evade judicial process through creative corporate
structuring. It denies the plaintiffs, out of hand, a judicial
forum and the opportunity to seek redress of grievous wrongs.
There is a vast disconnect between the majority’s decision
today and the foundational principles of fair play and due pro-
BAUMAN v. DAIMLERCHRYSLER 12029
cess that underlie our personal jurisdiction doctrine. For these
reasons, I dissent.