Wheelbarger v. Detroit Diesel , 313 Neb. 135 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/06/2023 09:04 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135Shawn Wheelbarger, appellant, v.
Detroit Diesel ECM, LLC, a Michigan
limited liability company, and Mike
Rodriguez, doing business as M & C
Distributing, appellees.
___ N.W.2d ___
Filed January 6, 2023. No. S-21-556.
1. Motions to Dismiss: Jurisdiction: Evidence: Appeal and Error.
When the hearing on a motion to dismiss for lack of personal jurisdic-
tion falls short of an evidentiary hearing held in a matter similar to
determining the issue at trial, the plaintiff is required only to make a
prima facie showing of personal jurisdiction in order to survive the
motion to dismiss and an appellate court examines the question of
whether the nonmoving party has established a prima facie case of per-
sonal jurisdiction de novo.
2. Motions to Dismiss: Appeal and Error. In reviewing the grant of a
motion to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual conflicts
in favor of that party.
3. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
4. Constitutional Law: Due Process. The Due Process Clause of the U.S.
Constitution protects an individual’s liberty interest in not being subject
to the binding judgments of a forum with which he or she has estab-
lished no meaningful contacts, ties, or relations.
5. Jurisdiction: States. The constitutional touchstone for personal juris-
diction over a nonresident is whether the defendant purposefully estab-
lished minimum contacts in the forum state.
6. ____: ____. The minimum contacts requirement protects the defendant
against litigating in a distant or inconvenient forum and ensures that
states do not exceed the limits imposed by their status as coequal sover-
eigns in a federal system.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 1357. Due Process: Jurisdiction: States. The benchmark for determining if
the exercise of personal jurisdiction satisfies due process is whether the
defendant’s minimum contacts with the forum state are such that the
defendant should reasonably anticipate being haled into court there.
8. ____: ____: ____. The analysis of whether the defendant’s minimum
contacts with the forum state are such that the defendant should reason-
ably anticipate being haled into court there is not simply mechanical or
quantitative, but requires that a court consider the quality and nature
of the defendant’s activities to ascertain whether the defendant has the
necessary minimum contacts with the forum to satisfy due process.
9. Jurisdiction: States. It is essential in each case that there be some act
by which the defendant purposefully avails itself of the privilege of con-
ducting activities within the forum state, thus invoking the benefits and
protections of its laws.
10. ____: ____. There must be fair warning that a particular activity might
subject the nonresident defendant to the jurisdiction of the foreign sov-
ereign, giving a degree of predictability to the legal system by allowing
potential defendants to structure their primary conduct with some mini-
mum assurance as to where that conduct will and will not render them
liable to suit.
11. Jurisdiction: Words and Phrases. Specific personal jurisdiction
requires that the specific cause of action at issue arise out of or is related
to the defendant’s contacts with the forum state; in other words, there
must be an affiliation between the forum and the underlying controversy.
12. ____: ____. For specific personal jurisdiction, there must be a substan-
tial connection between the defendant’s contacts with the forum state
and the operative facts of the litigation. This is determined at the time a
suit is commenced.
13. Jurisdiction: Time. The requisite minimum contacts must exist either
at the time the cause of action arose, at the time the suit was filed, or
within a reasonable period of time immediately prior to the filing of
the lawsuit.
14. Jurisdiction: States. Contacts with Nebraska unrelated to the action
brought have no bearing on a specific personal jurisdiction analysis.
15. ____: ____. Unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the requirement of contact
with the forum state.
16. Jurisdiction: States: Contracts: Parties. Standing alone, neither the
existence of a contract with a party in the forum state nor use of inter-
state communications are enough to support the necessary contacts for
a finding of specific personal jurisdiction, but they are proper consider-
ations in the overall analysis.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 13517. ____: ____: ____: ____. When dealing with contracts, it is the prior
negotiations and contemplated future consequences, along with the
terms of the contract and the parties’ actual course of dealing, which
must be evaluated in determining whether a defendant purposefully
established minimum contacts within the forum.
18. ____: ____: ____: ____. Because minimum contacts depend on the
activities of the defendant related to operative facts of the litigation
and not on the unilateral actions taken by someone else, direct contacts
between the independent contracting parties, which the intermediary is
not involved in, do not create minimum contacts for the intermediary.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Reidmann and Welch, Judges, on
appeal thereto from the District Court for Buffalo County, John
H. Marsh, Judge. Judgment of Court of Appeals affirmed.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellant.
No appearance for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
At issue in this appeal is whether the plaintiff made a
prima facie showing of specific personal jurisdiction over the
out-of-state defendants who facilitated the sale of allegedly
defective software installed by a local mechanic in four of
the plaintiff’s trucks over a period of 21⁄2 years. The defend­
ants operate a business acting nationally as a “middleman”
between mechanics and entities that create software to increase
engine performance. Although the software company and the
mechanic negotiate directly in determining the desired prod-
uct and its price, billing goes through the defendants in order
to collect a commission. Contact is initiated by mechanics
through a website of the defendants.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135II. BACKGROUND
1. Complaint
Shawn Wheelbarger, a resident of Nebraska, operates a
trucking business. He brought suit in Buffalo County, Nebraska,
against Newcomb Diesel LLC (Newcomb), a Nebraska lim-
ited liability company operating a diesel mechanic business.
Wheelbarger alleged Newcomb installed software in four of
Wheelbarger’s trucks from December 2013 through May 2016.
Wheelbarger alleged the software caused mechanical problems
leading to approximately $100,000 in repair bills and over
$1 million in lost income. Wheelbarger’s complaint against
Newcomb was later dismissed with prejudice upon a joint
motion and stipulation.
Under the same complaint, Wheelbarger also brought
suit against Detroit Diesel ECM, LLC (Detroit Diesel), a
Michigan limited liability company, and Mike Rodriguez, a
resident of Michigan, doing business as M & C Distributing
(M & C) (collectively Michigan Defendants). Wheelbarger
asserted Michigan Defendants “operate businesses creat-
ing software to reprogram engine control modules in diesel
trucks”; “designed, manufactured, marketed, sold, and placed
on market the software installed in Wheelbarger’s trucks”;
and were “merchants with respect to the software installed in
Wheelbarger’s trucks.”
Wheelbarger asserted against Michigan Defendants claims
for strict liability, negligence, and breach of implied warran-
ties. With respect to these claims, Wheelbarger alleged the
software installed in his trucks was “defectively designed,
manufactured, and/or labeled” and “unreasonably dangerous”
for its intended or reasonably foreseeable use. Also, Michigan
Defendants allegedly failed to (1) exercise reasonable care
in “designing, manufacturing, and/or labeling the software”;
(2) ensure the software installed in Wheelbarger’s trucks was
safe for its intended use; and (3) provide Wheelbarger “with
adequate warning that the software installed in Wheelbarger’s
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135trucks may damage Wheelbarger’s trucks.” Wheelbarger
alleged Michigan Defendants knew or had reason to know the
software was likely to be dangerous when used in its intended
and foreseeable uses and Wheelbarger was a foreseeable user
who reasonably relied on Michigan Defendants’ skill or judg-
ment to furnish software suitable for the particular purpose of
safely and reliably operating his trucking business.
Wheelbarger acknowledged Michigan Defendants’ principal
place of business was in Michigan, but asserted the district
court had personal jurisdiction because Michigan Defendants
“market their products in the State of Nebraska and said prod-
ucts are the subject of this action.”
2. Special Appearance and
Motion to Dismiss
Michigan Defendants filed a special appearance and motion
to dismiss, arguing they did not have sufficient minimum con-
tacts with Nebraska to establish general or specific personal
jurisdiction. A hearing on the motion was held.
(a) Affidavit
An affidavit by Rodriguez was offered by Michigan
Defendants in support of the motion and entered into evidence.
Rodriguez averred Michigan Defendants did not create the sub-
ject software. Rather, the software installed in Wheelbarger’s
trucks was designed and provided by an unidentified third
party. Rodriguez explained he and his wife jointly own Detroit
Diesel and M & C, having operated their business through
M & C until Detroit Diesel was incorporated. Their business
is to act as a “‘middleman’” connecting software designers
with mechanics in need of software for semi-tractor engines to
increase performance.
Once Rodriguez puts the mechanics in contact with a soft-
ware designer, “all information relative to the job . . . is
directly between the mechanic and the software designer”
and the “software is directly sent from the software designer
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Nebraska Supreme Court Advance Sheets
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135electronically to the mechanic as I have no part in the delivery
of the product.”
Rodriguez’ business makes money by collecting a commis-
sion for connecting the mechanics with the software designers.
This is done by the software designer sending Rodriguez an
invoice, after which Rodriguez “will add a profit margin to the
invoice and re-invoice the mechanic.” Rodriguez explained, “I
am paid by the mechanic and I then remit payment to the soft-
ware designer.” In the transaction at issue, Rodriguez’ business
made a profit of $200. It is unknown what Newcomb paid for
the software.
Rodriguez averred there was no written contract between
Wheelbarger and either Detroit Diesel or M & C. Neither
Detroit Diesel nor M & C maintained at any pertinent time
any office or physical presence in Nebraska. Likewise, at
all pertinent times, Michigan Defendants have not owned
property in Nebraska; kept corporate records in Nebraska;
or had any employees, officers, or directors in Nebraska.
Michigan Defendants do not “generate any continual revenue
in Nebraska.”
Michigan Defendants have a website through which
Rodriguez believed Newcomb contacted Rodriguez seeking
his services in relation to Newcomb’s work on Wheelbarger’s
trucks. He recollected that the first contact was in July 2014
and that the last contact was in March 2016. The website
does not mention serving Nebraska or its residents. Rodriguez
averred, “Although the instant case is not the only contact that
I have had with [Newcomb] in seeking my services, all con-
tacts . . . have been in the same scenario . . . .” Rodriguez did
not elaborate on how many other such contacts had occurred.
Rodriguez averred he had never had any correspondence
with Wheelbarger.
(b) Answer to Interrogatory
At the hearing, the court also received an exhibit contain-
ing Newcomb’s answer to an interrogatory asking Newcomb
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135to identify any companies that provided it with reprogram-
ming software. Newcomb stated in its answer, “We purchased
the software from M & C . . . to enable us to tune the ECM
programming according to the customer’s request.” Newcomb
described that M & C “sends the software remotely over the
internet” and “[a]ll settings and parameter changes are done to
customer preferences and explicit consent.” The district court
referred to the exhibit in its order on the motion to dismiss.
(c) Arguments
In a brief in opposition to the motion to dismiss, Wheelbarger
explained that “[a]s against the Michigan Defendants, this is a
products liability action.” Wheelbarger asked the court to treat
the matter as one decided on pleadings and affidavits, under
which he was required to make only a prima facie showing
of personal jurisdiction. In the event the court believed the
evidence had converted the motion into a motion for summary
judgment, Wheelbarger asked the court to continue the matter
so he could present further evidence.
Wheelbarger conceded Michigan Defendants did not cre-
ate the software that Newcomb installed in his trucks, but
argued that by serving as a “middleman” sending the invoices
to mechanics, they “supplied” it. He conceded the court
lacked general personal jurisdiction over Michigan Defendants
but argued the court had specific personal jurisdiction over
Michigan Defendants.
Wheelbarger elaborated that Michigan Defendants either
directly sent or directly facilitated sending software to Nebraska
and knew they were doing so—indeed, they had been doing
business with Newcomb for almost 2 years. This was dis-
tinct from it simply being generally predictable that through
the stream of commerce, the subject software would reach
Nebraska.
Michigan Defendants responded that their business relation-
ship with Newcomb was “very brief, lasting approximately a
year and a half.” Given the passivity of their website, Michigan
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135Defendants argued such purchases did not create the substantial
connection necessary for personal jurisdiction.
(d) Order
The district court granted the motion to dismiss. It explained
Wheelbarger needed only to make a prima facie showing of
jurisdiction to survive Michigan Defendants’ motion to dis-
miss, because the matter was submitted solely on the pleadings
and supporting affidavits. It ultimately concluded, however,
that Wheelbarger had failed to make a prima facie show-
ing of jurisdiction. Focusing on the lack of contact between
Wheelbarger and Michigan Defendants and the passivity of
Michigan Defendants’ website, the court found Michigan
Defendants should not have reasonably anticipated being haled
into court in Nebraska.
3. Nebraska Court of Appeals’ Decision
The Nebraska Court of Appeals affirmed the district court’s
order dismissing the claims against Michigan Defendants for
lack of personal jurisdiction. 1
It quoted at length our opinion in Abdouch v. Lopez, 2
describing that, for internet jurisdiction cases, the Eighth
Circuit, like the majority of circuit courts, has adopted the
analytical framework set forth in the memorandum opinion of
Zippo Mfg. Co. v. Zippo Dot Com, Inc. 3 Zippo Mfg. Co. sets
forth a sliding scale where at one end there is personal jurisdic-
tion because a “defendant enters into contracts with residents
of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet” and at the
“opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible
1
Wheelbarger v. Detroit Diesel, 31 Neb. App. 145, 978 N.W.2d 334 (2022).
2
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
3
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa.
1997).
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135to users in foreign jurisdictions.” 4 In the middle ground are
websites where a user can exchange information with the host
computer and “the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of
the exchange of information that occurs on the Web site.” 5
The Court of Appeals quoted our statement in Abdouch
that the Zippo Mfg. Co. “‘sliding scale of interactivity test’”
is recognized by most circuits “‘only as a starting point.’” 6 A
defendant cannot be haled into court simply because a website
is “highly interactive.” 7 Traditional statutory and constitutional
principles, including territorial limitations on the power of the
respective States, remain the touchstone of the inquiry. 8
The Court of Appeals reasoned that Michigan Defendants
“simply responded to Newcomb[’s] inquiry” through its pas-
sive website. 9 Michigan Defendants did not negotiate, contract
for, or sell the software. Michigan Defendants “simply facili-
tated the request for the product to a third party who negotiated
and supplied the product to Newcomb.” 10
The Court of Appeals noted that “[t]he causes of action deal
directly with alleged problems with that product, the nature of
which was separately negotiated with the software developer
and Newcomb . . . based on Wheelbarger’s expectations.” 11
The Court of Appeals found that, under the circumstances,
Michigan Defendants lacked sufficient minimum contacts to
have reasonably anticipated being haled into court in Nebraska.
We granted Wheelbarger’s petition for further review.
4
Id. at 1124.
5
Id.
6
Wheelbarger v. Detroit Diesel, supra note 1, 31 Neb. App. at 156, 978
N.W.2d at 344, quoting Abdouch v. Lopez, supra note 2.
7
Id. (internal quotation marks omitted).
8
See Wheelbarger v. Detroit Diesel, supra note 1.
9
Id. at 160, 978 N.W.2d at 346.
10
Id.
11
Id.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135III. ASSIGNMENTS OF ERROR
Wheelbarger assigns that the Court of Appeals erred in (1)
failing to correctly apply the standard of review by looking at
the facts in the light most favorable to Wheelbarger and (2)
concluding that Nebraska courts lacked jurisdiction over the
Michigan Defendants due to an overreliance on or misapplica-
tion of the Zippo Mfg. Co. test.
IV. STANDARD OF REVIEW
[1] When the hearing on a motion to dismiss for lack of
personal jurisdiction falls short of an evidentiary hearing held
in a matter similar to determining the issue at trial, the plaintiff
is required only to make a prima facie showing of personal
jurisdiction in order to survive the motion to dismiss and an
appellate court examines the question of whether the nonmov-
ing party has established a prima facie case of personal juris-
diction de novo. 12
[2] In reviewing the grant of a motion to dismiss, an appel-
late court must look at the facts in the light most favorable to
the nonmoving party and resolve all factual conflicts in favor
of that party. 13
V. ANALYSIS
On appeal, as he did below, Wheelbarger focuses on his
products liability claim and argues Michigan Defendants’ direct
involvement with Newcomb in facilitating multiple contacts
with the software developer and billing for the sales estab-
lished specific personal jurisdiction. He argues the Court of
Appeals disregarded Newcomb’s answer to the interrogatory
stating M & C sent the software to it, failed to view the facts in
the light most favorable to Wheelbarger, and placed undue reli-
ance on the passivity of Michigan Defendants’ website under
12
See, Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020);
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).
13
Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523(2018).
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Nebraska Supreme Court Advance Sheets
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135the Zippo Mfg. Co. test for personal jurisdiction when the case
involved direct business dealings.
[3] Personal jurisdiction is the power of a tribunal to sub-
ject and bind a particular entity to its decisions. 14 Because
our long‑arm statute 15 confers personal jurisdiction over non-
residents to the fullest extent constitutionally permitted, the
inquiry here is whether Michigan Defendants had sufficient
minimum contacts with Nebraska so that the exercise of per-
sonal jurisdiction would not offend traditional notions of fair
play and substantial justice. 16
[4-6] The Due Process Clause of the U.S. Constitution pro-
tects an individual’s liberty interest in not being subject to the
binding judgments of a forum with which he or she has estab-
lished no meaningful contacts, ties, or relations. 17 The consti-
tutional touchstone for personal jurisdiction over a nonresident
is whether the defendant purposefully established minimum
contacts in the forum state. 18 The minimum contacts require-
ment protects the defendant against litigating in a distant or
inconvenient forum and ensures that states do not exceed the
limits imposed by their status as coequal sovereigns in a fed-
eral system. 19
[7,8] The benchmark for determining if the exercise of per-
sonal jurisdiction satisfies due process is whether the defend­
ant’s minimum contacts with the forum state are such that the
defendant should reasonably anticipate being haled into court
there. 20 This analysis is not simply mechanical or quantita-
tive, but requires that we consider the quality and nature of
14
VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
15
Neb. Rev. Stat. § 25-536 (Reissue 2016).
16
See Yeransian v. Willkie Farr, supra note 12.
17
Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40 (2003).
18
Quality Pork Internat. v. Rupari Food Servs., 267 Neb. 474, 675 N.W.2d
642 (2004).
19
See Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705,
905 N.W.2d 644 (2018).
20
Kugler Co. v. Growth Products Ltd., supra note 17.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135the defendant’s activities to ascertain whether the defendant
has the necessary minimum contacts with the forum to satisfy
due process. 21
[9,10] It is essential in each case that there be some act by
which the defendant purposefully avails itself of the privilege
of conducting activities within the forum state, thus invoking
the benefits and protections of its laws. 22 This requirement
ensures that a defendant will not be subject to litigation in
a jurisdiction solely due to random, fortuitous, or attenuated
contacts. 23 There must be fair warning that a particular activ-
ity might subject the nonresident defendant to the jurisdiction
of the foreign sovereign, giving a degree of predictability to
the legal system by allowing potential defendants to struc-
ture their primary conduct with some minimum assurance as
to where that conduct will and will not render them liable
to suit. 24
[11-14] Specific personal jurisdiction requires that the
specific cause of action at issue arise out of or is related to
the defendant’s contacts with the forum state; in other words,
there must be an affiliation between the forum and the under-
lying controversy. 25 For specific personal jurisdiction, there
must be a substantial connection between the defendant’s
contacts with the forum state and the operative facts of the lit-
igation. 26 This is determined at the time a suit is commenced.
The requisite minimum contacts must exist either at the time
the cause of action arose, at the time the suit was filed, or
21
Id. See, also, Internat. Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct.
154, 90 L. Ed. 95 (1945).
22
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra note 19.
23
Crete Carrier Corp. v. Red Food Stores, 254 Neb. 323, 576 N.W.2d 760(1998).
24
See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85 L.
Ed. 2d 528 (1985). See, also, e.g., Quality Pork Internat. v. Rupari Food
Servs., supra note 18.
25
See Yeransian v. Willkie Farr, supra note 12.
26
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135within a reasonable period of time immediately prior to the
filing of the lawsuit. 27 Contacts with Nebraska unrelated to
the action brought have no bearing on a specific personal
jurisdiction analysis. 28
[15-17] Unilateral activity of those who claim some relation-
ship with a nonresident defendant cannot satisfy the require-
ment of contact with the forum state. 29 Standing alone, neither
the existence of a contract with a party in the forum state nor
use of interstate communications are enough to support the
necessary contacts for a finding of specific personal jurisdic-
tion, but they are proper considerations in the overall analy-
sis. 30 When dealing with contracts, it is the prior negotiations
and contemplated future consequences, along with the terms
of the contract and the parties’ actual course of dealing, which
must be evaluated in determining whether a defendant purpose-
fully established minimum contacts within the forum. 31
Applying these principals, where there has been “protracted
business” related to the action involving “substantial and
numerous purchases” and communications, we have found
minimum contacts supporting specific personal jurisdiction. 32
In VKGS v. Planet Bingo, 33 for example, we held there was
specific personal jurisdiction in an action for declaratory judg-
ment as to rights under agreements between a Nebraska busi-
ness and an out-of-state software company with which there
had been monthly communications involving seven separate
contracts over the course of 6 years. We said the nonresident
defendant, although having never physically entered Nebraska,
27
Id.28
See Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra note 19.
29
Crete Carrier Corp. v. Red Food Stores, supra note 23.
30
See id.31
VKGS v. Planet Bingo, supra note 14.
32
McGowan Grain v. Sanburg, 225 Neb. 129, 142, 403 N.W.2d 340, 349
(1987).
33
VKGS v. Planet Bingo, supra note 14.
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WHEELBARGER V. DETROIT DIESEL
Cite as 313 Neb. 135deliberately reached out beyond its home state to voluntarily
create a long-term relationship with and assume obligations
toward a Nebraska company.
Likewise, in Crete Carrier Corp. v. Red Food Stores, 34
we held, in an action for indemnification under a transporta-
tion contract, that there was personal jurisdiction over the
nonresident defendant as a result of the ongoing contrac-
tual relationship over a period of 5 years and over 2,000
contacts placing orders and verifying deliveries during the
2‑year period of the relevant contract. Similarly, in Kugler
Co. v. Growth Products Ltd., 35 we held, in an action by a local
agricultural company for breach of contract and warranties,
that minimum contacts supported specific personal jurisdic-
tion over the nonresident seller of nitrogen products when the
local company had initially reached out to the nonresident
corporation after seeing an advertisement in a trade journal
and they developed an ongoing relationship surrounding a
substantial amount of product purchased by the local company
from the nonresident corporation over the course of 7 years.
Additionally, there were numerous communications relating to
the local company ultimately becoming an assigned distribu-
tor of the nonresident corporation’s products. We explained
that the situation was a far cry from “an isolated sale to a
Nebraska citizen.” 36
On the other hand, because the minimum contacts analy-
sis is not simply mechanical or quantitative, but requires
that we consider the quality and nature of the defendant’s
activities, there have been occasions where a single contract
is deemed sufficient because a substantial connection was
created. 37 To illustrate, we have found sufficient minimum con-
tacts where the singular contract created a substantial ongoing
34
Crete Carrier Corp. v. Red Food Stores, supra note 23.
35
Kugler Co. v. Growth Products Ltd., supra note 17.
36
Id. at 513, 658 N.W.2d at 48.
37
See Kugler Co. v. Growth Products Ltd., supra note 17.
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Cite as 313 Neb. 135relationship between a franchisor and a franchisee. 38 We have
also found sufficient minimum contacts under a single contract
where the nonresident defendant has acted as a guarantor for
the transaction in question, 39 thereby “purposefully reach[ing]
out to induce a particular action within the forum state.” 40
Finally, we have found sufficient minimum contacts under a
contract by a nonresident attorney to provide legal services
when such services were rendered by the attorney in Nebraska,
appearing pro hac vice and participating at length in filings and
hearings in a Nebraska court. 41 These instances are in contrast
to Roth Grading v. Martin Bros. Constr., 42 wherein the Court of
Appeals held minimum contacts were lacking in an action for
breach of a purchase agreement, when the contact between the
parties was limited to the subject transaction by the Nebraska
company to sell, for approximately $140,000, a single piece of
heavy equipment to the nonresident defendant.
[18] We have not addressed minimum contacts by an inter-
mediary who introduced parties that independently negotiated
and entered into the underlying contracts. However, because
minimum contacts depend on the activities of the defendant
related to the operative facts of the litigation and not on the
unilateral actions taken by someone else, 43 direct contacts
between the independent contracting parties, which the inter-
mediary is not involved in, do not create minimum contacts
38
See Castle Rose v. Philadelphia Bar & Grill, 254 Neb. 299, 576 N.W.2d
192 (1998).
39
See, Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra note 19;
Quality Pork Internat. v. Rupari Food Servs., supra note 18.
40
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra note 19, 298
Neb. at 731, 905 N.W.2d at 665.
41
See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894(1999). But see Yeransian v. Willkie Farr, supra note 12.
42
Roth Grading v. Martin Bros. Constr., 25 Neb. App. 928, 916 N.W.2d 70(2018).
43
See, Crete Carrier Corp. v. Red Food Stores, supra note 23; 4 American
Law of Products Liability 3d § 48:82 (2014).
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Cite as 313 Neb. 135for the intermediary. We have held that even the acts of pred­
ecessor corporations have no bearing on the requisite mini-
mum contacts over the defendant successor corporation, absent
express adoption of the predecessor’s liabilities. 44 For example,
in RFD-TV v. WildOpenWest Finance, 45 we found the defendant
successor corporation lacked minimum contacts for purposes
of an action on a 5-year contract entered into by the local
plaintiff with a nonresident predecessor corporation. Contacts
between the parties consisted of the nonresident successor
cable television provider sending, based on terms negotiated by
the predecessor corporation, monthly licensing fees to the local
programming service over the course of 2 years. The television
provider also occasionally communicated remotely with the
programming service’s employees to discuss and pay invoices.
We summarized that the “actual business dealings” between the
actual parties were “extremely limited.” 46
As the Court of Appeals pointed out, 47 the Florida district
court opinion in Miller v. Berman 48 is instructive as to the
more specific scenario of a nonresident defendant who acts as
an independent intermediary to the contracting parties. In an
action for negligent misrepresentation, breach of express war-
ranty, false advertising, and joint venture liability, the court in
Miller held that the plaintiff’s forum lacked personal jurisdic-
tion over the nonresident broker and exclusive distributor of
a certain foreign yacht manufacturer. The broker had been
contacted by the plaintiff through the broker’s website. When
it became apparent the plaintiff wished to purchase a highly
customized yacht that was beyond the scope of the broker’s
distributorship, the broker advised the plaintiff to negotiate
44
RFD-TV v. WildOpenWest Finance, supra note 12. See Nimmer v. Giga
Entertainment Media, supra note 13.
45
RFD-TV v. WildOpenWest Finance, supra note 12.
46
Id. at 328, 849 N.W.2d at 116.
47
See Wheelbarger v. Detroit Diesel, supra note 1.
48
Miller v. Berman, 289 F. Supp. 2d 1327 (M.D. Fla. 2003).
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Cite as 313 Neb. 135directly with the foreign yacht manufacturer. The plaintiff did
and entered into a contract directly with the yacht manufac-
turer. The broker accepted a commission on the sale. The court
in Miller reasoned that, based upon the limited nature of the
exchange between the parties over the internet and the broker’s
website, the broker did not purposefully direct business activi-
ties toward the forum state.
The claim for which Wheelbarger asserts there is specific
personal jurisdiction over Michigan Defendants is for prod-
ucts liability in relation to the software Newcomb installed
in four of Wheelbarger’s trucks over the course of 21⁄2 years.
There is no dispute that Michigan Defendants had no direct
contacts with Wheelbarger. There is no dispute that Michigan
Defendants did not design the software at issue and did not
participate directly with Newcomb in negotiations relative
to the creation of software. Michigan Defendants’ relation-
ship with Newcomb began when Newcomb reached out to
Michigan Defendants upon finding their website advertising
their services as a “middleman” who connects software design-
ers with mechanics. Michigan Defendants sent the invoices
for the software to Newcomb and accepted payment directly
from Newcomb, after which Michigan Defendants remitted the
payment, minus the commission, to the unidentified software
designer. Viewing the exhibits in a light most favorable to
Wheelbarger, we determine Michigan Defendants electroni-
cally delivered the software to Newcomb as well.
Although, unlike in Miller, this case allegedly involves
four transactions rather than one, it is similar to Miller in
the limited nature of the relevant contacts. 49 It is also similar
to our cases dealing with successor entities participating in
multiple underlying transactions because the actual business
dealings between Michigan Defendants and Newcomb were
extremely limited. It does not involve, as in many of our
cases finding personal jurisdiction, protracted business. And
49
See id.- 152 -
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Cite as 313 Neb. 135the actual business dealings between Michigan Defendants and
Wheelbarger were nonexistent.
We agree with the Court of Appeals and the lower court
that the quality and nature of Michigan Defendants’ activities
related to the action brought against them by Wheelbarger do
not support personal jurisdiction. Even if Michigan Defendants
electronically transferred the software to Newcomb, Michigan
Defendants’ contacts were too attenuated for Michigan
Defendants to have purposefully established minimum contacts
within Nebraska.
VI. CONCLUSION
For these reasons, we affirm the decision of the Court of
Appeals affirming the district court’s dismissal of Michigan
Defendants for lack of personal jurisdiction.
Affirmed.