Monge v. RG Petro-Machinery (Group) Co.

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 7, 2012
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOEL MONGE,
Plaintiff - Appellant,
v. No. 12-6009
RG PETRO-MACHINERY (GROUP) CO.
LTD.; EAGLE ENERGY SERVICES L.L.C.;
BRONCO ENERGY SERVICES L.L.C.;
EAGLE WELL SERVICE CO. INC. OF
KANSAS; EAGLE WELL SERVICE INC.;
BRONCO DRILLING COMPANY INC.;
BRONCO DRILLING COMPANY L.L.C.,
Defendants - Appellees,
and
RICHARD ENERGY LLC; RICHARD
MOORE,
Defendants,
and
LIBERTY INSURANCE CORPORATION,
Intervenor.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:09-CV-01188-R)
Scott B. Hawkins (John W. Norman and Bradley E. Norman, with him on the briefs),
Norman & Edem, P.L.L.C., Oklahoma City, Oklahoma, appearing for Appellant.
C. Todd Ward (C. William Threlkeld, with him on the brief), Fenton, Fenton, Smith,
Reneau & Moon, Oklahoma City, Oklahoma, appearing for Appellees.
Gary W. Davis, Harvey D. Ellis, Jr., and Adam C. Hall, Crowe & Dunlevy, A
Professional Corporation, filed a brief for Appellee RG Petro-Machinery (Group) Co.,
Ltd.
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
In 2007, employees of Richard Energy, an Oklahoma company, traveled to China
and arranged with RG Petro, a Chinese manufacturer, to purchase rigs that are used to
repair oil wells. Richard Energy took possession of the rigs in China and exported them
to the United States. The rigs were consigned to Eagle Well Service, Inc. (“EWS”), a
Kansas corporation, and delivered in Kansas. EWS later moved one of the rigs to
Oklahoma, where Joel Monge, an EWS employee covered by workers’ compensation,
was seriously injured during an accident involving the rig.
Mr. Monge filed a diversity action against EWS under Oklahoma’s intentional tort
exception to the exclusive remedy of Oklahoma’s Workers’ Compensation Act and
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against Richard Energy and RG Petro under Oklahoma’s manufacturers’ products
liability laws. RG Petro filed a motion to dismiss based on lack of personal jurisdiction,
and EWS filed a motion for summary judgment contending the intentional tort exception
does not apply. The district court granted both motions. Mr. Monge filed a motion to
alter or amend the court’s summary judgment order, which the district court denied
except for a request to fix a date in the order.
Mr. Monge appeals, arguing that there is a genuine issue of material fact as to his
claim against EWS; that the district court abused its discretion in denying his motion to
alter or amend the judgment; and that the district court erred in finding that it lacked
personal jurisdiction over RG Petro. Richard Energy settled with Mr. Monge and is not
involved in this appeal.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
RG Petro manufactures workover rigs, which are used to fix oil wells by drawing
pipe from the ground. A traveling block connects sections of pipe to the rig cable as they
are pulled from the ground. As the cable is pulled in, the pipe and the traveling block are
pulled toward the crown of the derrick, or the top of the rig’s tower. If the rig’s operator
1
Bronco Drilling also was named as a defendant but was dismissed early in the
litigation.
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pulls too much pipe, or pulls the pipe too quickly, the traveling block can strike the crown
and damage the rig in an accident known as a “crown out.”
A device known as a “crown saver” is designed to prevent crown outs by stopping
the traveling block when the pipe has been pulled too high. As the pipe rises, the rig’s
cable winds around a drum. When too much cable has been pulled, the cable winding
around the drum touches the actuating rod of the crown saver, thereby stopping the
traveling block.
Rigs are also equipped with a “crown bumper.” A crown bumper is a large block
of rubber encapsulating metal rods that in turn are welded to the crown of the rig. In the
event of a crown out, the rubber block absorbs some of the impact of the traveling block.
It therefore serves the purpose of preventing or mitigating damage and injury from a
crown out.
Rig 43, the rig on which Mr. Monge was injured, was manufactured in China by
RG Petro and exported to the United States by Richard Energy, an Oklahoma company.
It was consigned to EWS, a Kansas company, and shipped by Richard Energy from
China to Kansas. EWS later moved it to the worksite in Oklahoma where Mr. Monge
was injured. Further facts relevant to personal jurisdiction will be discussed later.
On September 29, 2008, Mr. Monge was injured approximately 40 minutes after a
crown out. At the time of the crown out, the rig’s supervisor and regular operator, Jesus
Vazquez, was in a nearby truck with the seat down and his hat over his head. Another rig
hand, Ipolito Villalobos, was operating the rig. He testified at his deposition that he had
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been training by doing simple tasks in operating the rig for about six months, and that he
did not have very much experience. Mr. Monge was on the rig floor, and another hand,
Phillipe Acevedo, was on the derrick.
Jesse Escobedo was Mr. Vazquez’s supervisor and the tool pusher. He generally
oversaw operations and ensured the rig had all the necessary equipment and supplies. He
was not on the site that day.
Mr. Villalobos mistakenly pulled an extra section of pipe, and the traveling block
struck the crown bumper. The actuating rod for the crown saver had been removed,
rendering the crown saver inoperable. After the crown out, Mr. Vazquez approached the
rig. He and the others looked up at the crown and did not see anything wrong, so they
resumed pulling pipe.
Mr. Monge’s expert reported that the welds attaching the crown bumper to the
rig’s crown were too small and had not completely fused the steel tubes in the bumper to
the backing plate. The impact of the crown out weakened the already faulty welds.
About 40 minutes after the crown out, the crown bumper detached and fell, striking Mr.
Monge and knocking him from the rig. Mr. Monge was rendered a quadriplegic. Further
facts regarding the incident will be presented below.
B. Procedural Background
Mr. Monge filed suit in the United States District Court for the Western District of
Oklahoma. Although workers’ compensation is normally the exclusive remedy for an
employee claim against an employer in worker injury cases in Oklahoma, Mr. Monge
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filed suit against EWS under the intentional tort exception to Oklahoma’s Workers’
Compensation Act. He alleged that EWS had (1) intentionally bypassed the crown saver
and ignored that it was not functional, (2) failed to train its employees on how to use the
crown saver, and (3) allowed an inexperienced worker to operate the rig without
supervision and without the crown saver. Mr. Monge also sued RG Petro and Richard
Energy under Oklahoma’s manufacturers’ products liability laws.
RG Petro filed a motion to dismiss for lack of personal jurisdiction. The district
court held an evidentiary hearing on that issue and ordered the parties to file
supplemental briefs. It concluded that Mr. Monge had failed to prove by a preponderance
of the evidence that the court could exercise either specific or general personal
jurisdiction over RG Petro.
EWS filed a motion for summary judgment. The district court concluded that Mr.
Monge had not proven that there was a genuine issue of fact as to an element of his prima
facie case—that EWS knew that an injury such as Mr. Monge’s was substantially certain
to result from EWS’s conduct. The court therefore granted summary judgment in favor
of EWS.
Mr. Monge then filed a motion to alter or amend the judgment under Rule 59 of
the Federal Rules of Civil Procedure on the basis of previously unavailable evidence.
The district court denied the motion on two grounds: (1) the evidence had previously
been available and Mr. Monge’s counsel had not established that he had made diligent
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efforts to discover the evidence; and (2) the evidence would not have affected the court’s
summary judgment decision in favor of EWS.
II. DISCUSSION
Mr. Monge argues that the district court (1) improperly interpreted and applied the
intentional conduct exception to the Workers’ Compensation Act known as the
“substantial certainty test;” (2) abused its discretion in denying Mr. Monge’s motion to
alter or amend the judgment; and (3) erred in finding that it lacked personal jurisdiction
over RG Petro. We will analyze these arguments in turn.
A. The Intentional Conduct Exception and Summary Judgment
Mr. Monge argues that the district court erred in granting summary judgment for
EWS because the court improperly interpreted and applied the intentional conduct
exception to the Workers’ Compensation Act.
We review de novo a district court’s decision to grant summary judgment,
applying the same standards the district court should apply. E.E.O.C. v. C.R. England,
644 F.3d 1028, 1037 (10th Cir. 2011). A court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e construe all facts
and reasonable inferences in a light most favorable to the nonmoving party.” Champagne
Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1078 (10th Cir. 2006) (citation omitted)
(quotations omitted). “A dispute is genuine if there is sufficient evidence so that a
rational trier of fact could resolve the issue either way.” Crowe v. ADT Sec. Servs., Inc.,
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649 F.3d 1189, 1194 (10th Cir. 2011) (quotations omitted); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact is material if under the substantive law it
is essential to the proper disposition of the claim.” Id. (quotations omitted).
We examine the legal background on the substantial certainty test, additional
factual background, and how the law applies to this case. We finally consider additional
arguments made by Mr. Monge.
1. The Substantial Certainty Test
Under Oklahoma’s Workers’ Compensation Act, workers’ compensation is
normally the exclusive remedy for an employee to recover from the employer for job-
related injuries. But Oklahoma law has recognized an exception when an employee “has
been wilfully injured by his employer.” Parret v. UNICCO Serv. Co., 127 P.3d 572, 574
(Okla. 2005) (quotations omitted). In Parret, the Oklahoma Supreme Court adopted the
substantial certainty test to determine whether an injury resulted from intentional
conduct. Id. at 575.2
2
The Oklahoma legislature amended in 2010 and repealed in 2011 the statute
containing the intentional tort exception, enacting in its place Okla. Stat. tit. 85, § 302.
See Jordan v. W. Farmers Elec. Co-op., 2012 OK 94, ¶ 6 n.2, ___ P.3d ___ (Okla. Nov.
13, 2012); id. at ¶ 4 n.6 (Kauger, J., concurring). The legislature thereby eliminated the
substantial certainty test as part of the intentional tort exception. It declared that an
intentional tort exists only when the employer acted with “willful, deliberate, specific
intent” to cause injury. Okla. Stat. tit. 85, § 302(B). The Oklahoma Supreme Court
recently held that the revised statute does not have retroactive application. Rather,
“liability for on the job injuries is governed by the law in effect at the time of the injury.”
Jordan, 2012 OK 94, ¶ 6 n.2.
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To recover from an employer beyond a workers’ compensation remedy, an
“employer must have (1) desired to bring about the worker’s injury or (2) acted with the
knowledge that such injury was substantially certain to result from the employer’s
conduct.” Id. at 579. “Under the second part of this standard,” the substantial certainty
test, “the employer must have intended the act that caused the injury with knowledge that
the injury was substantially certain to follow.” Id. “[M]ore than knowledge and
appreciation of the risk is necessary.” Id. (quotations omitted). Even recklessness or
wantonness is not enough. Id. There must be more than knowledge of “foreseeable
risk,” “high probability,” or “substantial likelihood”; there must be “knowledge of the
‘substantial certainty’ of injury.” Id.In Price v. Howard, 236 P.3d 82 (Okla. 2010), the Oklahoma Supreme Court
further explained that “[e]stablishing that an employer has acted in a manner resulting in
an employee’s injuries being substantially certain presents a formidable barrier to
recovery in tort.” Id. at 90. This is because “nothing short of a demonstration of the
employer’s knowledge of the substantial certainty of injury will suffice. The
employer’s cognizance of a foreseeable risk, high probability, or substantial likelihood of
injury are insufficient to impose tort liability.” Id. at 88 (bold in original).
Most recently, while reviewing a trial court’s dismissal of a Parret complaint for
failure to state a claim, the Oklahoma Supreme Court stated that “[s]ubstantial certainty
. . . is found when an employer intended the act that caused the injury with knowledge
that the injury was substantially certain to follow.” Jordan v. W. Farmers Elec. Co-op.,
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2012 OK 94, ¶ 9, ___ P.3d ___ (Okla. Nov. 13, 2012). Such “knowledge may be inferred
from the employer’s conduct and all the surrounding circumstances.” Id. (quotations
omitted).
2. Additional Background
The evidence presented by the parties included affidavit and deposition testimony
from Rig 43 workers, a safety alert, and expert reports.
a. Affidavit of Jesus Vazquez
In an affidavit, the rig’s supervisor and regular operator, Jesus Vazquez, stated that
“[EWS] should have known through their inspections that the [actuating rod] was not
placed correctly and was not being used for its purpose—to prevent the traveling blocks
from striking the top of the rig.” ROA, Vol. III at 91. He also stated that, “[w]ithout the
[actuating rod] in use, it is easy to see how this accident was certain to happen.” Id.b. Deposition of Ipolito Villalobos
Mr. Villalobos, who was operating Rig 43 the day Mr. Monge was injured, stated
at his deposition that EWS should have fixed the crown saver because, in his opinion, the
crown out would never have happened otherwise. After the accident, he left EWS in part
for better pay and in part because he felt better about safety at a different company. He
also testified that he had not received any training about crowning out before the
accident. Id. at 69. Rather, Mr. Vazquez had just told him to “make sure [to] count the
tubing [(sections of pipe)] and [not] go up too high.” Id.-10-
Mr. Villalobos further testified that he had never before been on a rig during a
crown out and that, at the time of Mr. Monge’s injury, he felt he was being safe and that
his coworkers would have let him know if he was not. “[C]rowning out really wasn’t a
big issue for me, a big problem, because you have [the crown bumper],” such that if “you
miss count [and] crown out . . . no damage is really done to the actual frame.” Id. at 81.
c. Deposition Testimony of Jesse Escobedo
Mr. Escobedo, the tool pusher for the rig, testified at his deposition that he had
seen pipe pulled past the safety stopping point at least 10 times during his career, but he
had never seen the pipes taken past that point on Rig 43. He stated that he had never
tested the crown saver to determine if it was functioning because “[n]obody ever hit the
crown . . . when [he] was there.” Id. at 139. He testified that he was assigned to Rig 43
when it was brand new and that, at the time, he did not know about crown savers, had
never used one, and was not trained on how to use one.
Mr. Escobedo also stated that Mr. Monge would not have been hurt if the crown
saver had been activated. Id. at 140. He confirmed that when EWS’s safety inspector
checked the rig, he always checked the crown saver as “all right.” Id. at 140.
d. Minerals Management Service Safety Alert
The record contains a safety alert from the Minerals Management Service of the
U.S. Department of Interior. It informed rig owners that a crown out can occur even if a
crown saver is activated when pipe is being pulled at high speed and with high
momentum.
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e. Experts’ Reports
Charles Powell, Mr. Monge’s expert, stated in his report that the crown saver “was
reportedly not used nor maintained” on the rig, and that the “activation rod that senses an
imminent crown out was totally missing from” the crown saver. ROA, Vol. III at 111.
Terry Brittenham, Richard Energy’s expert, stated in his report that the “crown
bumper is intended to prevent most of the rig damage that may result from low speed and
low load” collisions, but that it “is not designed nor intended to prevent collisions or to
prevent all collision-related damage or consequences.” Id. at 94. His report also stated
that the rig crew was working short-handed, with only Mr. Monge on the floor and the
other floor hand running the rig.
Robert Jay Block, EWS’s expert, said in his report that “falling objects from that
great height are substantially certain to cause injury if a worker is struck.” ROA, Vol. III
at 167. Nevertheless, he added that the purpose of the crown bumper is to absorb the
shock of a crown out and that “[i]t had not been the experience of” EWS that crown outs
on such rigs “caused the crown bumpers to come apart and parts to fall.” Id.
3. EWS and the Substantial Certainty Test
At issue is whether EWS “acted with the knowledge that such injury was
substantially certain to result from the employer’s conduct.” Parret, 127 P.3d at 579.
Under the substantial certainty test, an “employer must have knowledge of more than
‘foreseeable risk,’ more than ‘high probability,’ and more than ‘substantial likelihood.’”
Id. Rather, “knowledge of the ‘substantial certainty’ of injury” is required. Id. Although
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EWS’s actions were arguably negligent, and perhaps even reckless, the record lacks
evidence that EWS “acted with the knowledge that such injury was substantially certain
to result from [its] conduct.” Id.
Viewing the evidence, including the circumstances surrounding the accident, in
the light most favorable to Mr. Monge, the record shows that a crown saver may prevent
damage due to crown outs, that Rig 43 was equipped with a non-working crown saver,
and that EWS’s safety inspectors had falsely certified that the crown saver was “all
right.” The record also shows that an inexperienced hand was operating the rig; that the
rig was short-handed, resulting in fewer people to notice that too much pipe was being
lifted; and that the supervisor, who was the regular operator of the rig, was not
monitoring the inexperienced operator.3
From the evidence, a rational trier of fact could find knowledge of foreseeable risk
or even knowledge of substantial likelihood of injury. But a rational factfinder could not
find knowledge of the substantial certainty of injury. Two case examples reinforce this
conclusion.
In Torres v. Cintas Corp., 672 F. Supp. 2d 1197 (N.D. Okla. 2009), Mr. Torres
was working for Cintas, a uniform supply company, when he climbed onto the moving
conveyor belt of an automated wash alley and fell into a dryer while trying to clear a
3
Mr. Escobedo’s deposition testimony that he had seen pipe pulled past the safety
stopping point at least 10 times during his career does not support an inference that EWS
had previously experienced any crown outs or injuries from crown outs.
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dryer jam. He died as a result. His surviving spouse sued Cintas and alleged a Parret
claim for intentional tort. The court denied Cintas’s motion for summary judgment
because there was an issue of fact whether Cintas was aware of substantial certainty of
injury. The denial was based on evidence that Cintas management knew its employees
had previously suffered injury by climbing onto the energized conveyor belt and
conflicting evidence that management was aware that numerous employees violated
safety procedure by continuing to climb onto moving conveyor belts to clear jams. Id. at
1207-11. In contrast to Cintas, EWS was not aware of previous crown outs on its rigs
because there was no evidence of previous crown outs occurring. EWS therefore could
not have knowledge of substantial certainty of injury suffered by Mr. Monge.
In Price, plaintiff was the widow of an airplane passenger who died in a crash of
his employer’s airplane. 236 P.3d at 85-86. She sued the employer, ServiCenter, Inc.,
for wrongful death. ServiCenter moved for summary judgment, claiming protection
under the exclusivity provision of Oklahoma’s Worker’s Compensation Act. The
Oklahoma Supreme Court accepted that “ServiCenter was aware that the airplane was
carrying passengers in violation of its temporary flight restrictions, that it was
overweight, and that it took off in foul weather.” 236 P.3d at 85. But even though these
circumstances “substantially increased the likelihood that complications could occur,” id.
at 89, and even if “the employer’s conduct in allowing the plane to take flight may have
been reckless,” id. at 90, Mrs. Price could not overcome the “formidable barrier” of
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showing that ServiCenter “acted with the knowledge that such injury was substantially
certain to result from the employer’s conduct.” Id.
EWS was aware that the crown saver on its rig was not operational, but even if
this deficiency “substantially increased the likelihood that complications could occur,”
and even if EWS’s overall conduct was reckless, Mr. Monge was unable to show that
EWS “acted with the knowledge that such injury was substantially certain to result.” Id.
As the court in Parret stressed in defining the substantial certainty test, “The issue is not
merely whether injury was substantially certain to occur, but whether the employer knew
it was substantially certain to occur.” 127 P.3d at 579. Mr. Monge not only failed to
show that his injury was substantially certain to occur, he also could not demonstrate
EWS’s “subjective appreciation of the substantial certainty of injury.” Id.
Mr. Monge may have had a meritorious claim to recover for his tragic injuries
outside of workers’ compensation if he were required to show that EWS had knowledge
of foreseeable risk, high probability, or even substantial likelihood of injury, but
“[n]othing short” of EWS’s knowledge of the substantial certainty of injury will do under
Parret and Price. Parret, 127 P.3d at 579.4
Finally, as the Oklahoma Supreme Court said in Price, “violation of government
safety regulations, even if wilful and knowing, does not rise to the level of an intentional
4
The Oklahoma Supreme Court’s recent decision in Jordan, which reversed the
dismissal of a Parret complaint because it contained sufficient allegations, does not
change our analysis or conclusions here.
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tort.” Price, 236 P.3d at 90. Even if EWS violated the industry standard promulgated by
the American Petroleum Institute (“API”) about the use of the crown saver, this would
not “rise to the level of an intentional tort.” Id.
4. Mr. Monge’s Additional Arguments
Mr. Monge presented two additional arguments: (1) the district court invaded the
province of the jury in deciding the cause of the injury; and (2) the district court
incorrectly required him to show that EWS anticipated the specific mode and manner of
his injuries.
a. Causation and the Jury’s Role
Mr. Monge argues that the district court erred when it stated, “The mere failure to
use the Crown Saver, however, was not the cause of the accident. The analysis is not as
simple as Plaintiff would like.” ROA, Vol. IV at 137-38. Mr. Monge contends this
statement demonstrates that the district court determined the cause of the accident, thus
invading the province of the jury. He argues that whether Mr. Monge’s injuries were
caused by the crown bumper’s breaking and falling or by the failure to use the crown
saver is a question that a jury could have resolved either way, and summary judgment
was therefore inappropriate.
The court’s statement must be understood in context. This statement is not from
the district court’s summary judgment order, but from its order denying Mr. Monge’s
later Rule 59(e) motion to alter or amend the district court’s judgment. It traces back to
the court’s conclusion in the summary judgment order that the API industry standard on
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the use of crown savers could not give rise to an intentional tort claim. In his motion to
alter or amend, Mr. Monge argued that the court misunderstood his position: he was not
arguing that the API standard alone gave rise to an intentional tort claim, but that it
should be considered with the surrounding circumstances. In its order denying the
motion to alter or amend, the district court stated,
Plaintiff contends that the act that caused the injury
was the intentional bypassing of the Crown Saver safety
device. Plaintiff contends the Court misunderstood its
position, that if the Crown Saver was not used injury was
substantially certain to occur. The mere failure to use the
Crown Saver, however, was not the cause of the accident.
The analysis is not as simple as Plaintiff would like, and
following Plaintiff’s theory would result in liability in every
case in which a safety rule or regulation was not followed and
an employee suffered an injury. This, however, was not the
court’s holding in Parret. See Price, 236 P.3d at 90
(“[V]iolation of government safety regulations, even if wilful
and knowing, does not rise to the level of an intentional
tort.”).
Id. With the benefit of the foregoing, it should be clear that Mr. Monge’s argument
suffers from two defects.
First, Mr. Monge took the district court’s statement out of context. The statement
came from the court’s order denying the motion to alter or amend, not its order granting
summary judgment in EWS’s favor. Mr. Monge fails to point this out and to explain why
the court’s reasoning in the later order indicated any error in its earlier order.
Second, understood in proper context, the court was addressing the effect of an
industry-recommended safety practice on Parret’s subjective knowledge requirement, not
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the cause of the accident. The district court stated, “[F]ollowing Plaintiff’s theory would
result in liability in every case in which a safety rule or regulation was not followed and
an employee suffered an injury.” Id. at 138. The court referred to Parret and its progeny
for the proposition that more was required to establish knowledge of substantial certainty
than the failure to follow a safety regulation. Because Mr. Monge sued EWS under an
intentional tort theory with a subjective knowledge requirement, he had to show more
than the violation of a safety regulation. Mr. Monge confuses causation with knowledge.
The district court correctly required that he prove that EWS acted with the knowledge
that an injury such as Mr. Monge’s was substantially certain to result from its conduct.
Parret, 127 P.3d at 579.
b. Evidence of the Specific Mode and Manner of Injuries and
of Prior Crown Outs
Mr. Monge argues that the district court failed to consider all the surrounding
circumstances of the accident and that it unduly focused on whether EWS anticipated the
specific mode and manner of his injuries—a bumper block falling after a crown out. He
also contends that the district court relied too much on whether there was evidence that
EWS had experienced previous crown outs. Mr. Monge is wrong on both counts.
First, the district court did not focus solely on the falling bumper block in applying
the substantial certainty test. It said: “The record in this case is devoid of any evidence
that anyone on Defendant’s behalf appreciated the risk of not using the Crown Saver on
the rig or of the bumper block falling following a crown out.” ROA, Vol. IV at 51
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(emphasis added). Moreover, the district court understandably and correctly considered
EWS’s knowledge of the substantial certainty of a falling bumper block injury because
that is how the accident occurred. Finally, Mr. Monge could not show in opposition to
summary judgment that EWS had “knowledge that such injury was substantially certain
to result,” whether through a falling bumper block or some other mode and manner, and
such a showing is what Parret requires. 126 P.3d at 579.
Second, the district court mentioned the lack of evidence of previous crown outs at
EWS as a consideration in finding that EWS was not liable under the substantial certainty
test, but the court did not say that the absence of such evidence alone would preclude Mr.
Monge from meeting the test. In fact, the court said: “Nothing in the Court’s Order was
intended to indicate that a prior identical incident is required to establish substantial
certainty, although a similar prior act clearly will provide substantial proof of such.”
ROA, Vol. IV at 139.
Finally, Mr. Monge argues that the district court failed to consider the
circumstances surrounding the accident and EWS’s behavior. Our review of the district
court’s decision fails to support this contention.
***
Based on the foregoing, we affirm the district court’s grant of summary judgment.
B. Mr. Monge’s Motion to Alter or Amend the Judgment
We next address whether the district court erred in denying Mr. Monge’s motion
under Rule 59(e) of the Federal Rules of Civil Procedure to alter or amend the judgment.
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The district court denied the motion because it was not based on newly discovered
evidence.
We review the denial of a Rule 59(e) motion to alter or amend a judgment for
abuse of discretion. ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1178 (10th
Cir. 2011). “A district court abuses its discretion if it made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Id. (citation omitted)
(quotations omitted).
1. Background on Mr. Monge’s Rule 59(e) Motion
On June 18, 2010, Mr. Monge filed a notice and subpoena to depose Kevin Ediger,
EWS’s safety director, on July 21, 2010. Because this subpoena was filed with the
subpoenas of employees of a company that was later dismissed as a defendant, this
deposition never occurred.
On July 14, 2011, Mr. Monge contacted EWS to arrange Mr. Ediger’s deposition.
EWS filed its motion for summary judgment on August 1, 2011, the deadline for
dispositive motions. Mr. Monge filed his response to the motion on August 22, 2011.
Mr. Ediger was deposed on September 15, 2011. The district court granted summary
judgment on October 5, 2011. Mr. Monge filed his Rule 59(e) motion to alter or amend
the judgment on October 26, 2011. He justified the motion to alter or amend on the basis
of newly discovered evidence: the September 15 deposition of Kevin Ediger.
In his motion to alter or amend, Mr. Monge argued Mr. Ediger’s testimony was
newly discovered evidence that created genuine issues of material fact as to whether
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EWS acted with knowledge that Mr. Monge’s injuries were substantially certain to result.
The district court denied the motion, concluding that the evidence was not newly
discovered. The district court also concluded that Mr. Ediger’s testimony would not have
changed its decision in favor of EWS.
2. Rule 59(e) Legal Background
“The purpose [of a Rule 59(e)] motion is to correct manifest errors of law or to
present newly discovered evidence.” Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir.
1994) (citation omitted) (quotations omitted). “Grounds for granting a Rule 59(e) motion
include (1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.”
Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144, 1153 (10th Cir. 2012)
(quotations omitted).
To support a Rule 59(e) motion with additional evidence, such as the deposition
testimony of EWS’s safety director, the moving party must show “(1) that the evidence is
newly discovered, or (2) if the evidence was available at the time summary judgment was
granted, that counsel made a diligent yet unsuccessful attempt to discover the evidence.”
Webber, 43 F.3d at 1345.
3. The District Court’s Order
The district court found that Mr. Ediger’s testimony was available to Mr. Monge
before the court entered its summary judgment order. At the time Mr. Monge responded
to the summary judgment motion, he knew that he wanted to depose Mr. Ediger, but he
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neither requested additional time for discovery nor filed a Rule 56(d) motion indicating
that additional time was needed to respond to EWS’s summary judgment motion.
The court also found that Mr. Monge failed to establish that he made diligent
efforts to discover the evidence. Mr. Monge knew Mr. Ediger’s name and position with
EWS well before his counsel began attempting to schedule a deposition in 2011.
Moreover, the district court noted that Mr. Monge did not seek leave to supplement his
response to the summary judgment motion once the deposition was taken, although the
court had not yet issued its order.
4. Mr. Monge’s Arguments
Mr. Monge argues that Mr. Ediger’s testimony was newly discovered evidence.
Under Rule 30(e) of the Federal Rules of Civil Procedure, a “deponent must be allowed
30 days after being notified . . . that the transcript or recording is available . . . to review
the transcript or recording” and “to sign a statement listing” any changes that need to be
made. Mr. Monge argues that, because of the time it took Mr. Ediger to sign his
statement, the deposition was not final until 20 days after the court filed its summary
judgment order.
Mr. Monge also argues that the district court was incorrect in finding that his
earlier knowledge of Mr. Ediger’s identity demonstrated a lack of diligence. Mr. Monge
initially issued a subpoena to depose Mr. Ediger on July 21, 2010. Mr. Monge states he
believed at that time that Bronco Drilling employed Mr. Ediger, and he argues that the
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subpoena to depose Mr. Ediger in July 2010 became a nullity when Bronco Drilling was
dismissed as a party.
Mr. Monge alternatively argues that he made a diligent but untimely attempt to
depose Mr. Ediger by informally requesting dates to depose him almost a month before
EWS filed its motion for summary judgment. He argues that his requests via email rather
than subpoena should not be used against him.
5. Analysis
Mr. Monge has not demonstrated that there was new evidence previously
unavailable as the ground for his Rule 59(e) motion. Bronco Drilling was dismissed as a
defendant on July 23, 2010. On November 30, 2010, in his Rule 26 initial disclosures,
Mr. Monge listed Mr. Ediger as a potential witness having information about EWS’s
policies and procedures and about the training of EWS employees. Mr. Monge gave the
same address and phone number for Mr. Ediger as for other EWS employees on the list:
the address and phone number of EWS’s counsel. The identity and the testimony of Mr.
Ediger were therefore available to Mr. Monge well before the summary judgment order
was entered on October 5, 2011.
Even if the evidence had not been available until Mr. Ediger was deposed on
September 15, 2011, Mr. Monge could have requested under Rule 56(d) that the court
defer consideration of the summary judgment motion.
Mr. Monge also has not demonstrated that he made a diligent attempt to obtain
the evidence. He waited until July 14, 2011, to begin arranging the deposition of Mr.
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Ediger. The district court had set the deadline for dispositive motions for August 1,
2011, and had instructed the parties to conduct any discovery necessary for such motions
before that date.
Mr. Monge has not shown that the district court committed a “clear error of
judgment” in finding that there was no newly discovered evidence. ClearOne
Commc’ns, Inc., 653 F.3d at 1178. The district court did not abuse its discretion in
denying the motion to alter or amend the judgment.5
C. Personal Jurisdiction over RG Petro
We turn to whether the district court erred in concluding that it lacked specific and
general jurisdiction over RG Petro. Because the district court conducted an evidentiary
hearing, Mr. Monge was required to show personal jurisdiction by a preponderance of the
evidence. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 n.4 (10th
Cir. 2008). We review the court’s legal determination de novo and its factual findings for
clear error. Id. at 1070; Fed. R. Civ. P. 52(a)(6); see also Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995); Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 326
(6th Cir. 1990).
5
The district court also concluded that, if it were to consider the merits of Mr.
Ediger’s testimony, such evidence would not have affected its decision. Mr. Monge
argues that Mr. Ediger’s testimony combined with the rest of the evidence meets Parret’s
subjective knowledge requirement. Because the district court did not abuse its discretion
in finding that Mr. Ediger’s testimony was not newly discovered evidence, we do not
address this argument.
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1. Legal Background
Personal jurisdiction in this case is based on the laws of the forum state and
whether jurisdiction comports with constitutional due process. Intercon, Inc. v. Bell Atl.
Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). Oklahoma courts “may
exercise jurisdiction on any basis consistent with the Constitution of this state and the
Constitution of the United States.” Okla. Stat. tit. 12, § 2004(F). As “Oklahoma’s long-
arm statute permits the exercise of any jurisdiction that is consistent with the United
States Constitution, the personal jurisdiction inquiry under Oklahoma law collapses into
the single due process inquiry.” Intercon, 205 F.3d at 1247.
Personal jurisdiction over a nonresident defendant satisfies due process if there are
sufficient “minimum contacts between the defendant and the forum state.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980); Intercon, 205 F.3d at 1247.
The minimum contacts may support specific jurisdiction or general jurisdiction. Id.a. Specific Jurisdiction
Specific jurisdiction calls for a two-step inquiry. Benton v. Cameco Corp., 375
F.3d 1070, 1075 (10th Cir. 2004). First, has the plaintiff shown that the defendant has
sufficient minimum contacts with the forum state? Id. at 1075-76. Second, would
personal jurisdiction over the defendant offend “traditional notions of fair play and
substantial justice”? Id. at 1075; see Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal.,
Solano Cnty., 480 U.S. 102, 113 (1987).
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To satisfy the minimum contacts requirement for specific jurisdiction, “we
examine whether the defendant ‘purposefully avail[ed] itself of the privilege of
conducting activities within the forum State.’” Id. at 1076 (quoting Hanson v. Denckla,
357 U.S. 235, 253 (1958)). The “requirement of ‘purposeful availment’ for purposes of
specific jurisdiction precludes personal jurisdiction as the result of ‘random, fortuitous, or
attenuated contacts.’” Bell Helicopter Textron, Inc. v. HeliQwest Int’l, Ltd., 385 F.3d
1291, 1296 (10th Cir. 2004) (quoting Burger King, Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985)). Although “it is foreseeable that” a product might travel to a forum state,
such foreseeability is not “a sufficient benchmark for personal jurisdiction under the Due
Process Clause.” World-Wide Volkswagen, 444 U.S. at 295. “[T]he foreseeability that is
critical to due process analysis is not the mere likelihood that a product will find its way
into the forum State. Rather, it is that the defendant’s conduct and connection with the
forum State are such that he should reasonably anticipate being haled into court there.”
Id. at 297.
In addition to the requirement that a defendant “purposefully direct[] his activities
at residents of the forum,” the litigation must “result[] from alleged injuries that arise out
of or relate to those activities.” Intercon, 205 F.3d at 1247 (quoting Burger King, 471
U.S. at 472); see also Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456
(10th Cir. 1996) (defendant’s contacts “must reflect purposeful availment and the cause
of action must arise out of those contacts.”); OMI Holdings, Inc. v. Royal Ins. Co. of
Canada, 149 F.3d 1086, 1092 (10th Cir. 1998) (defendant’s actions must “create a
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substantial connection with the forum state,” and the “defendant’s presence in the forum
[cannot have arisen] from the unilateral acts of someone other than the defendant.”
(citations omitted) (quotations omitted)).
Thus, a court must “determine whether a nexus exists between the Defendant[’s]
forum-related contacts and the Plaintiff’s cause of action.” Employers Mut. Cas. Co. v.
Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010) (quotations omitted). Whether
a defendant has the requisite minimum contacts with the forum state “must be decided on
the particular facts of each case.” Benton, 375 F.3d at 1076 (quotations omitted). The
court must examine the quantity and quality of the contacts. OMI, 149 F.3d at 1092.
In World-Wide Volkswagen, owners of a new Audi purchased in New York
decided to drive to their new home in Arizona. 444 U.S. at 288. While driving through
Oklahoma, they experienced a fiery accident that severely burned several of the
passengers in the Audi. The passengers sued the automobile retailer and its wholesaler,
New York corporations, in Oklahoma. The Supreme Court held there was no jurisdiction
in Oklahoma over the defendants because their product’s presence in the forum arose
from the unilateral acts of the Audi owners. Id. at 295; see also OMI, 149 F.3d at 1092.
b. General Jurisdiction
General jurisdiction requires that a defendant have contacts with the forum “so
‘continuous and systematic’ as to render [it] essentially at home in the forum State.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011); see
also Trujillo v. Williams, 465 F.3d 1210, 1218 n.7 (10th Cir. 2006) (general jurisdiction
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requires “‘continuous and systematic’ general business contacts with the forum state”
(quoting Helicopteros Nacionales v. Hall, 466 U.S. 408, 415 (1984))); Shrader v.
Biddinger, 633 F.3d 1235, 1243 (10th Cir. 2011) (“commercial contacts here must be of a
sort that approximate physical presence in the state” (quotations omitted)). “Because
general jurisdiction is not related to the events giving rise to the suit, courts impose a
more stringent minimum contacts test, requiring the plaintiff to demonstrate the
defendant’s continuous and systematic general business contacts.” Benton, 375 F.3d at
1080 (quotations omitted).
For example, in Helicopteros, a Colombian company had spent more than $4
million to purchase 80 percent of its helicopters, spare parts, and accessories from Texas
sources from 1970-77. 466 U.S. at 411, 418. The company had sent its pilots,
management, and maintenance personnel to be trained in Texas during the same period.
Id. The Supreme Court concluded that the Texas courts lacked general jurisdiction over
the company despite these numerous contacts with Texas. Id. In Benton, we concluded
that “two dozen transactions taking place over a period of eight years . . . is not sufficient
to meet the high burden of demonstrating . . . ‘continuous and systematic general
business contacts.’” 375 F.3d at 1080. And in Shrader, we said that “engaging in
commerce with residents of the forum state is not in and of itself the kind of activity that
approximates physical presence within the state’s borders.” 633 F.3d at 1243 (quotations
omitted).
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2. Additional Factual Background
RG Petro is a Chinese corporation with its headquarters and principal place of
business in Nanyang City, Hanan Province, People’s Republic of China. It builds
workover rigs. In October 2005, Warren Wang, an employee of Richard Energy, an
Oklahoma corporation, visited RG Petro in China. On October 29, 2005, the two
companies entered into a sales contract for Rig 43 and three other workover rigs. RG
Petro built the rigs in four or five months. They were delivered to Richard Energy at the
Shanghai seaport in April 2006.
The Certificate of Origin produced by RG Petro for Rig 43 indicated that RG Petro
built the rig, Richard Energy exported it to the United States, and it was consigned to
EWS. The shipping mark on the certificate states, “Richard Energy, in Waynoka, Ok.”
In his deposition, an RG Petro representative testified that Richard Energy had informed
RG Petro that all four of the rigs were going to EWS in Liberal, Kansas. Richard Moore
of Richard Energy testified that the rig was transported from Shanghai to the Port of
Houston. He also testified that, because the certificate stated that the rig was being
consigned to EWS in Liberal, Kansas, RG Petro would not have believed from the
shipping mark that the rig was going to Oklahoma.6 When parts were broken during
6
Mr. Moore was asked, “So if RG Petro originates this document and they have it
coming to—shipping mark as Richard Energy in Waynoka, Oklahoma, wouldn’t Richard
Energy or RG Petro believe or have knowledge that the rig is coming to the State of
Oklahoma?” RG Supp. App. at 15. Mr. Moore responded, “No, they would not because
they’re consigning it to Liberal, Kansas.” Id. at 16.
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shipping, Richard Energy contacted RG Petro, which sent replacement parts to EWS in
Liberal, Kansas.
The record contains eight emails between RG Petro and Richard Energy, from
February 7, 2006, until April 6, 2006.
 February 7, 2006, from “Andy” Song Gang, RG Petro’s international sales
department manager, to Richard Energy. Mr. Song responded to a request,
saying that RG Petro would send some pictures and technical specifications
for a brochure Richard Energy was creating. He also notified Richard
Energy that a product requested by a customer in Libya was ready.
 February 14, 2006, from Mr. Song to Richard Moore at Richard Energy.
The email transmitted a contract for five additional rigs. It also provided
requested advice about whether those rigs needed an extra water tank. In a
later deposition, Mr. Song testified that the contract for those rigs was never
completed.
 February 15, 2006, from Mr. Song to Mr. Moore. The email was a
response to further questions from EWS about the water brakes. Richard
Energy had forwarded an email from EWS about the water brakes, to which
RG Petro was responding. The response also indicated to Richard Energy
that RG Petro would fax back the contract for five rigs as soon as it was
received.
 February 20, 2006, from Mr. Song to Mr. Moore. Mr. Song said that he
would send a set of rig specifications and asked if Richard Energy would
like to order a year of spare parts. In his later deposition, Mr. Song
explained that when Mr. Wang visited China to buy the rigs, Mr. Wang
considered buying spare parts that RG Petro usually sells with the rigs, but
he did not decide at that time whether to buy the spare parts. The February
20 email from RG Petro was following up to see if the spare parts were
wanted.
 February 22, 2006, from Mr. Song to Mr. Moore. The emails exchanged
that day resolved some confusion about the brand name of the water brakes.
 March 3, 2006, from Mr. Song to Mr. Moore. Mr. Song stated that RG
Petro would try to obtain an import license for an engine and transmission
and asked about an advance payment for the five additional rigs.
 March 11, 2006, from Mr. Song to Mr. Moore. Mr. Song wrote that he had
given a catalog to Richard Energy’s representative and asked for
specifications necessary to import a transmission. In his deposition, Mr.
Song testified that the catalog was an American transmission catalog.
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 April 6, 2006, from Mr. Song to Mr. Moore. Mr. Song thanked Mr. Moore
for a packing list and invoice and asked Mr. Moore to look at an attached
quotation for an xj550 rig. Mr. Song also advised Mr. Moore of the status
of the shipment containing Rig 43: two of the xj350 rigs had arrived at the
seaport and two more would be arriving that weekend.
In September 2006, RG Petro received an email from two prospective clients in
Oklahoma. Three RG Petro representatives were then in Houston. They flew to
Oklahoma City to meet with the prospective clients and returned to Houston that same
day.
Finally, RG Petro maintained an English-language website, where it provided
information about its products, technology, and markets, as well as contact information
and links to Chinese- and Russian-language versions of the website. The website
advertised RG Petro as offering “good-quality products and the best services with the
purpose to meet the demands of the petroleum industry both at home and abroad.” ROA,
Vol. I at 76.
3. District Court Decision
After conducting an evidentiary hearing, the district court concluded that RG
Petro’s contacts with Oklahoma regarding Rig 43 were insufficient to support specific
jurisdiction. It found that Rig 43, from the outset, was to be consigned to EWS and sent
to Liberal, Kansas, and it found that EWS, not RG Petro or Richard Energy, later brought
the rig into Oklahoma. The court also found that RG Petro did not solicit the sale of Rig
43 in Oklahoma. Richard Energy approached RG Petro in China to purchase the rig. The
court found that the emails exchanged between RG Petro and Richard Energy occurred
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after completion of the contract for Rig 43, and that they did not relate to the incidents
giving rise to this litigation. Finally, the court found that replacement parts for parts
broken during shipping were sent to Kansas and not to Oklahoma.
The district court also concluded that the rig purchases, emails, and one-day visit
by RG representatives to Oklahoma did not establish the continuous and systematic
contacts necessary for general personal jurisdiction.
4. Mr. Monge’s Arguments
Mr. Monge argues that specific jurisdiction is proper because RG Petro could
reasonably anticipate being haled into an Oklahoma court after conducting and soliciting
business there. RG Petro knew that Richard Energy was an Oklahoma company, and the
sales documents identified Richard Energy’s Oklahoma address.
Mr. Monge also argues that the emails were related to the incidents giving rise to
the litigation because the contract for Rig 43 was not performed until after all the emails
had been exchanged. He further argues that replacement water brakes for parts that were
broken on unspecified rigs during shipment must have been sent to Oklahoma because
the contract for Rig 43 and its Certificate of Origin bore an Oklahoma address. He
finally argues that it was reasonably foreseeable to RG Petro that its products would end
up in Oklahoma and thus that it could be haled into court there.7
7
Mr. Monge also addressed the second step of specific jurisdiction analysis—
whether exercising personal jurisdiction would offend traditional notions of fair play and
Continued . . .
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Regarding general jurisdiction, Mr. Monge argues that (1) the sale of four, and
possibly 12, rigs to Richard Energy; (2) RG Petro’s phone and fax listings that, while not
Oklahoma numbers, are accessible in Oklahoma; (3) a website with those phone
numbers; (4) emails soliciting business from an Oklahoma company; (5) the company
representatives’ visit to Oklahoma; and (6) revenue from an Oklahoma customer,
altogether establish continuous and systematic contacts with the forum.
5. RG Petro’s Arguments
On specific jurisdiction, RG Petro quotes TH Agriculture & Nutrition, LLC v. Ace
European Group Ltd., 488 F.3d 1282, 1287 (10th Cir. 2007): a “contract with an out-of-
state party cannot, standing alone, establish sufficient minimum contacts with the forum
state.”
RG Petro also argues that Rig 43 was delivered to Richard Energy in China,
imported to the United States by Richard Energy, and destined for Liberal, Kansas—not
Oklahoma. RG Petro was never told the rig would later be moved into Oklahoma by its
Kansas owner.
RG Petro also argues that neither the replacement parts nor the emails relate to the
claim that Mr. Monge was injured by a defective weld on Rig 43.
______________________________________
Cont.
substantial justice. We need not reach this argument, as we hold that Mr. Monge has not
established that RG Petro had sufficient minimum contacts with the forum.
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Regarding general jurisdiction, RG Petro argues that Mr. Monge has not
demonstrated clear error as to the district court’s findings of fact. It argues that general
jurisdiction requires regularly conducted business activity within the state, not isolated
transactions with a single Oklahoma resident. It also argues that (1) its phone numbers
are not Oklahoma numbers; (2) the RG representatives’ visit to Oklahoma was an
isolated incident of only a few hours; (3) there is no evidence that the sale of rigs to an
Oklahoma company constituted a substantial portion of RG Petro’s income; (4) the
emails do not constitute solicitation of business in Oklahoma; and (5) the website is
passive, providing only information.
6. Analysis
a. Specific Jurisdiction
For specific jurisdiction, Mr. Monge’s injuries must arise out of or relate to
activities that RG Petro purposefully directed at residents of the forum. See Intercon, 205
F.3d at 1247.
Although Richard Energy, an Oklahoma company, purchased Rig 43, it was
consigned to EWS, a Kansas company, and it was sent to Kansas, not Oklahoma.8 EWS,
not RG Petro or Richard Energy, moved Rig 43 to Oklahoma. Thus, the rig’s “presence
in the forum arose from the unilateral acts of someone other than” RG Petro, and
8
Although the shipping mark included Richard Energy’s Oklahoma address, the
evidence is that the rig was shipped to Kansas.
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generally “courts have been unwilling to allow states to assert personal jurisdiction”
under such circumstances. OMI, 149 F.3d at 1092. “[S]pecific jurisdiction must be
based on actions by the defendant and not on events that are the result of unilateral
actions taken by someone else.” Bell Helicopter, 385 F.3d at 1296.
In Bell Helicopter, the Tenth Circuit denied personal jurisdiction over defendant
Copter Lease, a New Mexico corporation, which leased a helicopter to HeliQwest, a
Washington state corporation. Id. at 1294-95. HeliQwest received the helicopter in
Canada and moved it to its facility in Utah, where it was completely destroyed in a crash
during a logging operation. 385 F.3d at 1295. Eagle Copters, HeliQwest Aviation,
HeliQwest, and Copter Lease brought suit against Bell Helicopter, the manufacturer of
the helicopter, in Canada. Bell Helicopter then filed a complaint in the United States
District Court for the District of Utah against the plaintiffs in the Canadian action,
seeking a declaratory judgment about the applicability of a federal statute to the accident.
In Bell Helicopter, we held that there was no personal jurisdiction in Utah over
Copter Lease because HeliQwest, not Copter Lease, brought the helicopter to Utah.
Also, Copter Lease had no offices, employees, or operations in Utah. Even though
Copter Lease knew about HeliQwest’s Utah facility and that HeliQwest might take the
helicopter there, we said, citing World-Wide Volkswagen, that “mere foreseeability that a
customer will unilaterally move a chattel into a given state does not create jurisdiction
over the vendor [i.e., Copter Lease] of the chattel.” Id. at 1297. We held that “[t]his
mere possibility, even if true, does not suggest that Copter Lease purposefully availed
-35-
itself of the protections of Utah laws.” Id. Like Copter Lease, RG Petro did not move
the chattel (Rig 43) into Oklahoma. Unlike Copter Lease, the record does not indicate
that RG Petro knew that EWS had operations in Oklahoma and could foresee the “mere
possibility” that EWS would “unilaterally move” Rig 43 from Kansas to Oklahoma. The
case for jurisdiction over RG Petro is therefore even weaker than it was for Copter Lease.
The email contacts are tangential, at best, to Mr. Monge’s injuries. Most were
responses to inquiries that Richard Energy made to RG Petro, and it is therefore
questionable whether they represent activity “purposefully directed” at an Oklahoma
resident. See OMI, 149 F.3d at 1091 (a court may assert specific jurisdiction if the
defendant purposefully directed activities at residents of the forum). More importantly,
the emails have little, if anything, to do with Rig 43. See id. (litigation must result from
injuries arising out of or related to activities directed at forum residents). The contract for
that rig had already been completed and was in the process of fulfillment regardless of
the emails. See Kuenzle, 102 F.3d at 456-57 (arising out of requirement is not satisfied if
the same injury would have occurred regardless of forum contact).
Any contractual basis for jurisdiction in Oklahoma is similarly tangential to the
tort jurisdiction at issue here. Although RG Petro entered into a contract with an
Oklahoma corporation, “[a]n individual’s contract with an out-of-state party cannot,
standing alone, establish sufficient minimum contacts with the forum state.” TH
Agriculture & Nutrition, 488 F.3d at 1287. Rather, to establish sufficient minimum
contacts, a contract must “create continuing relationships and obligations with citizens”
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of the forum. Id. at 1287-88 (quotations omitted). A court must look to “prior
negotiations and contemplated future consequences” to determine whether “the contract
relied upon to establish minimum contacts [has] a ‘substantial connection’ with the forum
state.” Id. at 1288 (citation omitted) (quotations omitted).
This case involves a contract between a Chinese company (RG Petro) and an
Oklahoma company (Richard Energy), whereby the Chinese company would build a rig
that the Oklahoma company would send to a Kansas company (EWS) in Kansas. If this
were a contract dispute between RG Petro and Richard Energy, jurisdiction in Oklahoma
might be proper because the dispute would arise out of the contacts with a state resident.
But this case arises not from a contract dispute but from an accident on a rig that was
consigned to a Kansas company and sent to Kansas.
The district court concluded that Mr. Monge did not demonstrate by a
preponderance of the evidence that RG Petro “purposefully directed [its] activities at
residents of the forum, and [that] the litigation results from alleged injuries that arise out
of or relate to those activities.” Intercon, 205 F.3d at 1247. We agree. Although
jurisdiction over RG Petro may have been proper in Kansas, we hold that Oklahoma
courts lacked specific jurisdiction.
Finally, Mr. Monge cites Asahi, 480 U.S. at 107, perhaps suggesting a stream of
commerce argument that jurisdiction was proper because RG Petro could foresee that its
products would reach the Oklahoma market because it was selling its rigs to an
Oklahoma company. See World-Wide Volkswagen, 444 U.S. at 297-98 (holding that a
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“forum State does not exceed its powers under the Due Process Clause if it asserts
personal jurisdiction over a corporation that delivers its products into the stream of
commerce with the expectation that they will be purchased by consumers in the forum
State.”). Between World-Wide Volkswagen, where the Supreme Court first mentioned
stream of commerce, and Asahi, where the Court next addressed it, courts reached two
different interpretations of the stream of commerce approach to purposeful availment.
See Asahi, 480 U.S. at 110-11; see also J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct.
2780 (2011). Neither approach “bolster[s]” Mr. Monge’s claim of specific jurisdiction.
Goodyear Dunlop, 131 S. Ct. at 2855.
As explained by the Asahi plurality, to find purposeful availment, the first
approach requires more than placing a product into the stream of commerce. Asahi, 480
U.S. at 112 (plurality opinion). The substantial connection between the defendant and the
forum “must come about by an action of the defendant purposefully directed toward the
forum State.” Id. (emphasis in original); see also J. McIntyre, 131 S. Ct. at 2788-89.
Under the second approach, simply placing a product into the stream of commerce is
consistent with due process as long as the defendant “is aware that the final product is
being marketed in the forum State.” Asahi, 480 U.S. at 117 (Brennan, J., concurring); see
also J. McIntyre, 131 S. Ct. at 2788.
Mr. Monge has not demonstrated that the district court has specific jurisdiction
under either theory. He has not met the first interpretation’s requirement that RG Petro
purposefully directed actions toward the forum. Asahi, 480 U.S. at 112. RG Petro
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expected that the rig would go to EWS in Kansas. As in World-Wide Volkswagen, there
is no jurisdiction because the product entered the forum through EWS’s unilateral act, not
through RG Petro’s efforts to serve the market. 444 U.S. at 297. Moreover, as RG Petro
expected that Rig 43 would go to Kansas, Mr. Monge has not met the second
interpretation’s requirement that the defendant be “aware that the final product is being
marketed in the forum.” Asahi, 480 U.S. at 117 (Brennan, J., concurring).
The stream of commerce theory does not support Mr. Monge’s argument that the
district court has specific personal jurisdiction.
b. General Jurisdiction
For the district court to exercise general personal jurisdiction, Mr. Monge was
required to demonstrate by a preponderance of the evidence that RG Petro had
“continuous and systematic general business contacts” with Oklahoma. Benton, 375 F.3d
at 1080 (quotations omitted).9
RG Petro does not have an Oklahoma place of business, see Omeluk v. Langsten
Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir. 1995), or Oklahoma phone listings. Its
9
In cases arising from Utah law, we have employed a 12-factor test in analyzing
general jurisdiction. See Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292,
1295-96 (10th Cir. 1999). In cases from other states, we have employed a four-factor
test. See Kuenzle, 102 F.3d at 457; Trierweiler v. Croxton & Trench Holding Corp., 90
F.3d 1523, 1533 (10th Cir. 1996) (citing 4 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1067, at 298 (2d ed. 1987) (collecting cases)).
Because the record is so meager as to “continuous and systematic” contacts, we need not
decide which test is appropriate here.
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website does not provide contacts that approximate physical presence. See Shrader, 633
F.3d at 1243. Representatives from RG Petro visited Oklahoma only once for a few
hours. The record contains only a limited number of emails to an Oklahoma party and
similarly reflects only a limited number of sales to a single Oklahoma resident.
The district court did not err in concluding that Mr. Monge has not demonstrated
by a preponderance of the evidence that RG Petro had contacts with the forum “so
‘continuous and systematic’ as to render them essentially at home in the forum State.”
Goodyear, 131 S. Ct. at 2851. General jurisdiction was properly denied.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s orders granting summary
judgment, denying the motion to alter or amend, and dismissing RG Petro for lack of
personal jurisdiction.
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