IMERYS TALC AMERICA, INC. v. JOHNSON & JOHNSON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IMERYS TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC.,
Appellant,
v.
JUDITH RICKETTS, JOHNSON & JOHNSON, JOHNSON & JOHNSON
CONSUMER COMPANIES, INC. and PUBLIX SUPER MARKETS, INC.,
Appellees.
No. 4D17-3815
[December 19, 2018]
Non-final appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case No. CACE
17-001153 (13).
David M. Gersten, Joseph A. Sacher and Christopher A. Noel of Gordon
Rees Scully Mansukhani LLP, Miami, for appellant.
David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter,
and Todd R. Falzone and Karina D. Rodrigues of Kelly Uustal, PLC, Fort
Lauderdale, for appellee Judith M. Ricketts.
KUNTZ, J.
Imerys Talc America, Inc. appeals an order denying its motion to
dismiss a products liability action for lack of personal jurisdiction. Imerys
is a Delaware corporation with its principal place of business in California.
Imerys did not have contacts with Florida, either generally or specifically
related to the actions leading to the complaint. As a result, Imerys is not
subject to personal jurisdiction in Florida, and we reverse the circuit
court’s order.
Background
Judith Ricketts filed a seven-count complaint against Johnson &
Johnson, Johnson & Johnson Companies, Inc., Imerys, and Publix Super
Markets, Inc. Ricketts sought “recovery for damages as a result of
developing ovarian cancer, which was directly and proximately caused by
the wrongful conduct of the Defendants, the unreasonably dangerous and
defective nature of talcum powder, and the associated effects of developing
ovarian cancer.”
Imerys moved to dismiss for lack of personal jurisdiction. Relevant to
the personal jurisdiction issue, the complaint stated:
At all material times, the Defendant, IMERYS TALC AMERICA,
INC. F/K/A LUZENAC AMERICA, INC., was and is a Delaware
corporation, with its principal place of business in California.
At all material times, the Defendant, IMERYS TALC AMERICA,
INC. F/K/A LUZENAC AMERICA, INC. was engaged in the
business of mining and distributing talcum powder for use in
talcum powder based products, including the PRODUCT.
Imerys Talc is the successor or continuation of Luzenac
America, Inc., and Imerys Talc America, Inc. is legally
responsible for all liabilities incurred when it was known as
Luzenac America, Inc.
***
At all material times, all above Defendants were engaged in
the research, development, manufacture, design, testing, sale
and marketing of the PRODUCT, and placed such products
into the stream of commerce with knowledge and intent that
such products be sold in the State of Florida.
***
The Defendant, IMERYS TALC AMERICA, INC. F/K/A
LUZENAC AMERICA, INC., has substantial and not isolated
contact with the State of Florida and is subject to the general
jurisdiction of the Florida courts.
Imerys argued the complaint failed to establish general or specific
personal jurisdiction over it. In support of its lack of contacts with Florida,
Imerys also filed an affidavit of its director of engineering and quality.
The affidavit stated that Imerys “does not mine talc in Florida,” “does
not directly sell talc to [Johnson & Johnson] in Florida,” “does not directly
ship talc to [Johnson & Johnson] in Florida,” and “does not directly
distribute talc to [Johnson & Johnson] in” the state. Ricketts did not file
an affidavit in response to Imerys’s motion to dismiss or in support of
personal jurisdiction.
2
The circuit court held a hearing on Imerys’s motion and concluded the
hearing by stating that “this Court will follow the Florida Supreme Court
and not the Supreme Court of the United States in this particular case.”
The court issued an order denying Imerys’s motion.
Analysis
Determining whether a court can exercise personal jurisdiction over a
defendant involves a two-step inquiry. Venetian Salami Co. v. Parthenais,
554 So. 2d 499, 502 (Fla. 1989) (citing Unger v. Publisher Entry Serv., Inc.,
513 So. 2d 674, 675 (Fla. 5th DCA 1987), rev. denied, 520 So. 2d 586 (Fla.
1988)). The court must determine whether the allegations in the complaint
bring the action within Florida’s long-arm statute and, if so, whether
sufficient “minimum contacts” exist between the non-resident defendant
and Florida to satisfy due process. Id. (citing Unger, 513 So. 2d at 675).
Personal jurisdiction can be general or specific. Rolls-Royce, PLC v.
Spirit Airlines, Inc., 239 So. 3d 709, 713 (Fla. 4th DCA 2018) (citing Marina
Dodge, Inc. v. Quinn, 134 So. 3d 1103, 1106–07 (Fla. 4th DCA 2014)).
General personal jurisdiction allows a court to hear any claims against
a foreign corporation. Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2011) (citation omitted). It exists when the defendant’s
“affiliations with the State are so ‘continuous and systematic’ as to render
them essentially at home in the forum State.” Id. (citation omitted); see
also Daimler AG v. Bauman, 571 U.S. 117, 138 (2014) (In Daimler, the
plaintiffs asked the Court to “approve the exercise of general jurisdiction
in every State in which a corporation ‘engages in a substantial,
continuous, and systematic course of business.’ That formulation, [the
Court held], is unacceptably grasping.”).
Ricketts alleged in her complaint that Imerys was subject to the general
personal jurisdiction of the Florida courts. But in response to Imerys’s
motion to dismiss, Ricketts argued Florida courts can exercise specific
personal jurisdiction over Imerys. On appeal, Ricketts explains that she
“argued to the trial court that Imerys is subject to specific jurisdiction, not
general jurisdiction.” Because of these concessions, we proceed to the
specific jurisdiction analysis.
“Specific personal jurisdiction exists when ‘the alleged activities or
actions of the defendant are directly connected to the forum state.’” Rolls-
Royce, PLC, 239 So. 3d at 713 (quoting Caiazzo v. Am. Royal Arts Corp.,
73 So. 3d 245, 250 (Fla. 4th DCA 2011)). When analyzing specific personal
3
jurisdiction, the analysis “focuses on ‘the relationship among the
defendant, the forum, and the litigation.’” Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 775 (1984) (quoting Shaffer v. Heitner, 433 U.S. 186, 204
(1977)).
The Supreme Court has explained that for specific personal jurisdiction
to be appropriate, “the defendant’s suit-related conduct must create a
substantial connection with the forum State.” Walden v. Fiore, 571 U.S.
277, 284 (2014). And the connection must arise out of the defendant’s
own activities, not those of the plaintiff or a third party. Id. (citations
omitted).
The Supreme Court applied this principle in World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286 (1980), and rejected the “assertion that a
consumer’s unilateral act of bringing the defendant’s product into the
forum State was a sufficient constitutional basis for personal jurisdiction
over the defendant.” Asahi Metal Indus. Co., Ltd. v. Superior Court of
California, Solano County, 480 U.S. 102, 109 (1987) (discussing World-
Wide Volkswagen Corp., 444 U.S. at 295-96).
Later, the California Supreme Court held that specific personal
jurisdiction was appropriate because some valves sold by Asahi, a
Japanese manufacturer, were in California. Id. at 110-11. The United
States Supreme Court unanimously disagreed, with none of the three
separate opinions garnering five votes. A plurality opinion written by
Justice O’Connor explained that the “substantial connection” required
between a forum state and the defendant “must come about by an action
of the defendant purposefully directed toward the forum State.” Id. at 112
(plurality opinion) (emphasis removed) (citations omitted). The Court
stated in the plurality opinion that “[t]he placement of a product into the
stream of commerce, without more, is not an act of the defendant
purposefully directed toward the forum State.” Id. (plurality opinion).
The test set forth in Justice O’Connor’s plurality opinion is known as
the “stream-of-commerce” test. Even though the Court’s opinion left many
questions unanswered, the Court did not address the test again until
fifteen years later. See generally J. McIntyre Mach., Ltd. v. Nicastro, 564
U.S. 873 (2011). “The decades following Asahi did little to clarify the
stream-of-commerce confusion,” and in some respects J. McIntyre “did
little to refine the lines originally blurred in Asahi.” Jessica Jeffrey, The
Stream of Commerce Flows On, 46 SUFFOLK U.L. REV. 137, 137, 145 (2013).
In J. McIntyre, the New Jersey Supreme Court held that the courts of
that state “can exercise jurisdiction over a foreign manufacturer of a
4
product so long as the manufacturer ‘knows or reasonably should know
that its products are distributed through a nationwide distribution system
that might lead to those products being sold in any of the fifty states.’”
564 U.S. at 877 (citing Nicastro v. McIntyre Mach. Am., Ltd., 987 A.2d 575,
591, 592 (N.J. 2010)). Six justices on the Supreme Court agreed to reverse
the holding.
A plurality opinion written by Justice Kennedy and joined by three
justices explained that “[a]s a general rule, the exercise of judicial power
is not lawful unless the defendant ‘purposefully avails itself of the privilege
of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.’” Id. at 877 (plurality opinion) (quoting Hanson
v. Denckla, 357 U.S. 235, 253 (1958)). There may be exceptions to this
general rule, “[b]ut the general rule is applicable in this products-liability
case, and the so-called ‘stream-of-commerce’ doctrine cannot displace it.”
Id. at 877-78 (plurality opinion). Justice Kennedy wrote that “[t]he
defendant’s transmission of goods permits the exercise of jurisdiction only
where the defendant can be said to have targeted the forum; as a general
rule, it is not enough that the defendant might have predicted that its
goods will reach the forum State.” Id. at 882 (plurality opinion).
The other theory advanced focuses on whether a defendant could have
foreseen that the product would flow into the forum state. Asahi Metal,
480 U.S. at 117 (Brennan, J., concurring). But the plurality opinion in J.
McIntyre recognized that limiting the analysis to foreseeability is flawed.
As an example, allowing a state to exercise personal jurisdiction only
because an item is later sold into a state could have unforeseen, and
unconstitutional, consequences:
The owner of a small Florida farm might sell crops to a large
nearby distributor, for example, who might then distribute
them to grocers across the country. If foreseeability were the
controlling criterion, the farmer could be sued in Alaska or
any number of other States’ courts without ever leaving town.
J. McIntyre, 564 U.S. at 885 (plurality opinion).
Instead of foreseeability, “[t]he principal inquiry in cases of this sort is
whether the defendant’s activities manifest an intention to submit to the
power of a sovereign.” Id. at 882 (plurality opinion). This requires that the
defendant intentionally avail itself of the privilege of doing business in the
forum state. Id. (plurality opinion) (citations omitted).
5
Here, Imerys produced a component in one state (not Florida) and sold
it to a different company in a different state. It directed no action or
activities to Florida.
These facts, established through an affidavit filed by Imerys, are enough
to refute the jurisdictional allegations in the complaint. Ricketts was
required to file a counter-affidavit to support her position. See Airamid
Health Servs., LLC v. Anita Sechler Pers., 134 So. 3d 550, 554 (Fla. 5th
DCA 2014) (When a defendant files an affidavit refuting the jurisdictional
allegations in a complaint, “the burden then shifts to the plaintiff to show,
by counter-affidavit or other evidence, the basis upon which jurisdiction
is proper.” (footnote and citation omitted)); Dev. Corp. of Palm Beach v.
WBC Constr., L.L.C., 925 So. 2d 1156, 1160 (Fla. 4th DCA 2006) (“When,
however, the defendant files affidavits contesting the factual assertions of
jurisdiction or the existence of minimum contacts, the burden then shifts
to the plaintiff to file counter-affidavits supporting its position.”).
An evidentiary hearing is not required, however, when the plaintiff fails
to file a counter-affidavit to refute the defendant’s affidavit. Dev. Corp. of
Palm Beach, 925 So. 2d at 1160 (“If those affidavits conflict, then it is
incumbent on the trial court to hold a hearing to resolve the conflicts in
the evidence and determine the jurisdictional issue.”).
Thus, because Ricketts did not file a counter-affidavit, an evidentiary
hearing was not required. See Hilltopper Holding Corp. v. Estate of Cutchin
ex rel. Engle, 955 So. 2d 598, 602 (Fla. 2d DCA 2007) (“If the plaintiff fails
to come forward with sworn proof to refute the allegations in the
defendant’s affidavit and to prove jurisdiction, the defendant’s motion to
dismiss must be granted.” (citations omitted)); Tobacco Merchants Ass’n of
U.S. v. Broin, 657 So. 2d 939, 942 (Fla. 3d DCA 1995) (“The plaintiffs’
failure to respond with a counter-affidavit or other sworn proof
establishing the basis for the exercise of personal jurisdiction defeated the
exercise” of personal jurisdiction over the defendant. (footnote omitted)).
Finally, Ricketts argues Ford Motor Co. v. Atwood Vacuum Machine Co.,
392 So. 2d 1305 (Fla. 1981), requires a contrary result. That case held
that “the fact that a nonresident manufactures a component part outside
the state and takes no part in the sale, distribution, or marketing of the
finished product in the state is no basis for a limitation on jurisdiction.”
Id. at 1313 (citations omitted). But Atwood predates all of the recent
controlling opinions from the United States Supreme Court and from the
Florida Supreme Court itself. See, e.g., Grogan v. Archer, 669 So. 2d 289,
294 n.5 (Fla. 5th DCA 1996) (“[T]he Atwood decision has been placed in
doubt by Tomashevsky v. Komori Printing Machinery Co., Ltd., 715 F. Supp.
6
1562, 1566 (S.D. Fla. 1989) and it predates important, subsequent
decisions such as Venetian Salami.”); Smith v. Trans-Siberian Orchestra,
689 F. Supp. 2d 1310, 1315 (M.D. Fla. 2010) (“[T]he holding in Atwood
was reached prior to the Supreme Court’s dispositive decisions regarding
personal jurisdiction of non-resident defendants in Burger King Corp. v.
Rudzewicz, 471 U.S. 462 [ ] (1985) and Asahi Metal Industry Co. v. Superior
Court, 480 U.S. 102 [ ] (1987).”).
Our holding adheres to Asahi Metal, Nicastro, and cases from other
jurisdictions applying those cases. For example, the manufacturer of a
battery sold to a company for insertion in a product, later sold to Costco
for sale in all fifty states, is not subject to a state’s jurisdiction simply
because Costco sells the product there. Commerce & Indus. Ins. Co. v.
Durofix, Inc., No. CV 16-00111 LEK-RLP, 2018 WL 1865868, at *4 (D. Haw.
Apr. 18, 2018) (rejecting the argument that E-One was subject to specific
personal jurisdiction because, according to the plaintiff, “when E-One sold
300,000 batteries to Mobiletron, E-One knew Mobiletron planned to ship
the assembled RL435 LED Lights to Costco, which would distribute the
RL435 LED Lights in Hawai’i”). Nor is it sufficient to sell products that
merely end up in a state. Holland Am. Line Inc. v. Wartsila N. Am., Inc.,
485 F.3d 450, 459 (9th Cir. 2007) (“Holland America relies on the
proposition that those companies sold products or sponsored web
marketing for products that ended up in Washington. Neither is sufficient
to sustain jurisdiction here.”).
Other federal courts have held that mere awareness that a component
would be in a product and sold in a forum cannot, without more, establish
personal jurisdiction. See, e.g., Amburgey v. Atomic Ski USA, Inc., No.
2:06-CV-149-GZS, 2007 WL 1464380, at *4 (D. Me. May 17, 2007) (“Even
assuming that Atomic Austria had knowledge that the stream of commerce
would take its products into Maine, mere awareness is insufficient to
constitute purposeful availment.”); Adell Corp. v. Elco Textron, Inc., 51 F.
Supp. 2d 752, 755 (N.D. Tex. 1999) (The court found no personal
jurisdiction over Elco and explained that “Elco supplies General Motors
with components of the allegedly infringing device. General Motors
combines the components from Elco with components from others to form
its spare tire locking device. General Motors then installs the device on
pickup trucks and ships some of those trucks to Texas. Elco has no input
on General Motors’ distribution, it provides no warranties to Texas
customers, it has no advertising in Texas, and it has no direct sales of the
accused device in Texas.”); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81,
85 (1st Cir. 1997) (“Even assuming that CMSC had specific knowledge that
the stream of commerce would move its tire rims into Puerto Rico—and
there is neither evidence nor allegation to that effect—this awareness alone
7
would not be enough to constitute the purposeful availment which is
necessary for a showing of minimum contacts.”). 1
A manufacturer’s sale of a component to a party in a second state is
insufficient, without more, to subject the manufacturer to the jurisdiction
of a third state where the completed product was ultimately sold. Windsor
v. Spinner Indus. Co., Ltd., 825 F. Supp. 2d 640, 643 (D. Md. 2011)
(“[F]oreign businesses whose products are sold in the forum State by third
parties cannot be subjected to personal jurisdiction in the forum merely
because they should have known, knew, or even expected their products
to reach that forum.” (citing J. McIntyre, 564 U.S. at 890-91) (Breyer, J.,
concurring in judgment); Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939,
946 (4th Cir. 1994))).
Here, because Imerys has no contacts with Florida, Florida courts
cannot exercise specific jurisdiction over it.
Conclusion
We reverse the circuit court’s order and remand with instructions to
dismiss the cause of action against Imerys for lack of personal jurisdiction.
Reversed and remanded.
KLINGENSMITH, J., concurs.
TAYLOR, J., dissents with opinion.
1 See also Stevenson v. Cyprus Amax Minerals Co., No. 6:17-CV-417-ORL-40DCI,
2018 WL 3361884, at *4 (M.D. Fla. July 10, 2018) (“As the foregoing analysis
demonstrates, Imerys lacks the requisite ‘minimum contacts’ with Florida to
support the exercise of specific personal jurisdiction.”); Jinright v. Johnson &
Johnson, Inc., No. 4:17CV01849 ERW, 2017 WL 3731317, at *4 (E.D. Mo. Aug.
30, 2017) (“The evidence presented by nonresident Plaintiffs does not establish
personal jurisdiction over [Imerys], because it does not establish a connection
between Plaintiffs’ injuries, the products which caused the harm in this matter,
and Defendants’ contacts in Missouri.”); Hodjera v. BASF Catalysts LLC, No. C17-
48RSL, 2017 WL 3262501, at *2 (W.D. Wash. July 31, 2017) (“[P]laintiffs fail to
satisfy the second prong of the specific jurisdiction test: the requirement that
their claim arise out of [Imerys’s] purposeful contacts with the forum state.”). But
see Bors v. Johnson & Johnson, 208 F. Supp. 3d 648, 658 (E.D. Pa. 2016) (“Imerys
chose to register to do business in Pennsylvania in 2007, years after Pennsylvania
enacted its corporate registration statute specifically advising entities of personal
jurisdiction arising from their registration to do business. We find, at a
minimum, constructive consent to personal jurisdiction over Imerys in
Pennsylvania.”).
8
TAYLOR, J., dissenting.
I respectfully dissent. I would affirm the order on appeal because
Imerys’ affidavit failed to dispute the key jurisdictional allegations of the
plaintiff’s complaint, and those allegations demonstrate that Florida’s
assertion of personal jurisdiction over Imerys is constitutional. Because
the plaintiff’s undisputed allegations establish that Imerys placed its talc
into the stream of commerce over a period of decades with the knowledge
and intention that it would be sold in Florida as the main ingredient in
Johnson & Johnson’s widely-available baby powder, Imerys had sufficient
minimum contacts with Florida in order to satisfy due process. Moreover,
the maintenance of the suit in Florida does not offend traditional notions
of fair play and substantial justice.
The relevant jurisdictional allegations in the plaintiff’s complaint are as
follows. The plaintiff alleged that, for most of her life, she purchased
Johnson & Johnson baby powder in Broward County, Florida. She alleged
that she used the powder “on a daily basis for multiple decades prior to
her diagnosis of ovarian cancer in 2013.” She also alleged that, at all
material times, Imerys mined and sold talc to Johnson & Johnson, and
that Imerys knew Johnson & Johnson was packaging and selling the talc
to consumers as baby powder. She further alleged that, at all material
times, Imerys “placed such products into the stream of commerce with
knowledge and intent that such products be sold in the State of Florida.”
Finally, she alleged that Johnson & Johnson and Imerys played an integral
role in a trade group called the Talc Interested Party Task Force, an anti-
regulatory organization formed to defend talc use in response to scientific
evidence finding talc to be a carcinogen. Imerys’ affidavit disputed none
of those material allegations.
Due process requires that a nonresident have sufficient minimum
contacts with the forum state such that the maintenance of a suit “does
not offend traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation
marks omitted). Critical to the due process analysis is whether the
nonresident’s “conduct and connection with the forum State are such that
he should reasonably anticipate being haled into court there.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
For a nonresident defendant to anticipate being haled into a Florida
court, “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.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–75 (1985)
9
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). “The 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.” World-Wide Volkswagen, 444 U.S. at 297–
98. Thus, “if the sale of a product . . . is not simply an isolated occurrence,
but arises from the efforts of the manufacturer or distributor to serve
directly or indirectly, the market for its product in other States, it is not
unreasonable to subject it to suit in one of those States . . . .” Id. at 297.
The United States Supreme Court has twice attempted to clarify World-
Wide Volkswagen’s stream-of-commerce doctrine, but has yet to issue a
majority opinion as to the proper standard for determining when personal
jurisdiction in the forum state can be premised upon a nonresident’s
placement of goods into the stream of commerce. See J. McIntyre Mach.,
Ltd. v. Nicastro, 564 U.S. 873 (2011); Asahi Metal Indus. Co. v. Superior
Court of Cal., Solano Cty., 480 U.S. 102 (1987).
In Asahi Metal, the Supreme Court unanimously held that it would be
unreasonable and unfair for a California court to exercise personal
jurisdiction over a Japanese manufacturer of tire valve stems with respect
to a foreign company’s indemnification claim against the manufacturer
arising out of a motorcycle accident, given the international context, the
heavy burden on the foreign defendant, and the slight interests of the
plaintiff and the forum state. 480 U.S. at 114–16. However, the fractured
court did not produce a majority opinion on the question of when
minimum contacts may be premised on a stream-of-commerce theory. See
id. at 111–12 (O’Connor, J., plurality opinion) (endorsing the view that the
due process clause requires “something more than that the defendant was
aware of its product’s entry into the forum State through the stream of
commerce in order for the State to exert jurisdiction over the defendant”);
id. at 117 (Brennan, J., concurring in part and concurring in judgment)
(“The stream of commerce refers not to unpredictable currents or eddies,
but to the regular and anticipated flow of products from manufacture to
distribution to retail sale. As long as a participant in this process is aware
that the final product is being marketed in the forum State, the possibility
of a lawsuit there cannot come as a surprise.”); id. at 122 (Stevens, J.,
concurring in part and concurring in the judgment) (“Whether or not this
conduct rises to the level of purposeful availment requires a constitutional
determination that is affected by the volume, the value, and the hazardous
character of the components.”).
The Supreme Court made a second attempt to clarify the stream-of-
commerce doctrine in Nicastro, but that case produced yet another
10
fragmented decision. There, a plaintiff seriously injured his hand while
using a metal-shearing machine, and later brought suit in New Jersey
against the machine’s British manufacturer. Nicastro, 564 U.S. at 878.
The relevant jurisdictional facts were that: (1) an independent distributor
on one occasion sold and shipped one machine to the plaintiff’s employer
in New Jersey; (2) the British manufacturer permitted the independent
distributor to sell its machines to anyone in America; (3) and the British
manufacturer attended trade shows in major American cities. Id. at 888(Breyer, J., concurring). On those facts, the Supreme Court held that it
was not constitutionally proper for New Jersey to exercise jurisdiction over
the British manufacturer. Id.Justice Kennedy’s plurality opinion, joined by three other justices, took
the position that a “[t]he defendant’s transmission of goods permits the
exercise of jurisdiction only where the defendant can be said to have
targeted the forum; as a general rule, it is not enough that the defendant
might have predicted that its goods will reach the forum State.” Id. at 882(Kennedy, J., plurality opinion).
By contrast, Justice Breyer’s concurring opinion, joined by Justice
Alito, rejected “the plurality’s seemingly strict no-jurisdiction rule.” Id. at
890 (Breyer, J., concurring). Instead, Justice Breyer concluded that “the
outcome of this case is determined by our precedents.” Id. at 887. Justice
Breyer found that the contacts between the British manufacturer and New
Jersey were not constitutionally sufficient to support New Jersey’s exercise
of personal jurisdiction, explaining that “[n]one of our precedents finds
that a single isolated sale, even if accompanied by the kind of sales effort
indicated here, is sufficient.” Id. at 888.
Justice Breyer reasoned that all of the competing tests from Asahi Metal
had “strongly suggested that a single sale of a product in a State does not
constitute an adequate basis for asserting jurisdiction over an out-of-state
defendant, even if that defendant places his goods in the stream of
commerce, fully aware (and hoping) that such a sale will take place.” Id.at 888–89. However, Justice Breyer did not affirmatively adopt any of the
standards from Asahi Metal, and instead adhered strictly to Supreme
Court precedents and the “limited facts” of the case. Id. at 889–93.
In the present case, the majority relies heavily upon Justice Kennedy’s
plurality opinion in Nicastro, effectively treating it as controlling
precedent. 2 However, “[w]hen a fragmented Court decides a case and no
2Likewise, in Southern Wall Products, Inc. v. Bolin, 251 So. 3d 935 (Fla. 4th DCA
2018), this court quoted heavily from Justice Kennedy’s plurality opinion in
11
single rationale explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.”
Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks
omitted). Thus, under the rule of Marks, Justice Breyer’s concurring
opinion furnished the narrowest grounds for the Nicastro decision and
represents the holding of the Court.
The narrow rulings of Nicastro and Asahi Metal do not alter existing
Florida precedents holding that a nonresident manufacturer who serves
Florida’s market by “continuous and systematic activity,” even when done
indirectly through others, is subject to the jurisdiction of Florida courts.
See Ford Motor Co. v. Atwood Vacuum Mach. Co., 392 So. 2d 1305, 1307,
1310–13 (Fla. 1981) (holding that a nonresident manufacturer of
component parts in Ford vehicles, who knew that Ford automobiles would
be shipped to Florida and sold, was subject to jurisdiction in Florida:
“Continuous and systematic activities provide a reasonable basis for the
assertion of jurisdiction. . . . [T]he fact that a nonresident manufactures a
component part outside the state and takes no part in the sale,
distribution, or marketing of the finished product in the state is no basis
for a limitation on jurisdiction. . . . [The manufacturer’s] lack of direct
presence and activity within the borders of Florida is no bar to our holding
that the minimum contacts test of International Shoe is met.”) (italics
added); McHugh v. Kenyon, 547 So. 2d 318, 319 (Fla. 4th DCA 1989)
(holding that Florida had jurisdiction over a nonresident manufacturer of
ladders whose products were “placed into the stream of commerce” and
who had “a reasonable expectation that large numbers” would be
purchased here: “A manufacturer that produces hundreds of thousands
of product units that are distributed over a five-year period in the United
States, of which at least 6,000 were marketed in Florida, should
reasonably anticipate being sued in this state in connection with product
defects causing injury.”); Louis Winer Co., Inc. v. San Francisco Mercantile
Co., Inc., 501 So. 2d 171, 173 (Fla. 4th DCA 1987) (holding that Florida
obtained personal jurisdiction over a nonresident manufacturer of
component parts of a nightgown where it was undisputed that “the
movement of these products into Florida was systematic and continuous”).
As this court stated in Louis Winer: “[P]ersonal jurisdiction may be
asserted over a corporation that delivers its products into the stream of
Nicastro. To the extent Bolin could be read as suggesting that Justice Kennedy’s
plurality opinion in Nicastro represents “the current Supreme Court position on
minimum contact analysis,” id. at 941, I disagree with such a suggestion.
However, I believe Bolin was correctly decided on its facts.
12
commerce with the expectation that they will be purchased by consumers
in the forum State, but not where the product’s presence in that state is a
single, isolated occurrence.” 501 So. 2d at 173 (internal quotation marks
omitted). This statement of law is derived from World-Wide Volkswagen
and is consistent with Justice Breyer’s concurring opinion in Nicastro,
which represents the most recent controlling opinion from the United
States Supreme Court on this topic.
Contrary to the majority’s suggestion in this case, neither the United
States Supreme Court, nor the Florida Supreme Court, has ever overruled
Atwood or its progeny. The majority cannot sidestep clear precedents from
the Florida Supreme Court and this court by relying upon nonbinding
plurality opinions of the United States Supreme Court. While Atwood
predates other important decisions on personal jurisdiction, the actual
holdings of those more recent decisions cannot be said to have overruled
Atwood. 3 Thus, the panel in this case is bound by Atwood and this court’s
subsequent decisions applying Atwood. See Hoffman v. Jones, 280 So. 2d
431, 440 (Fla. 1973) (holding that “a District Court of Appeal does not have
the authority to overrule a decision of the Supreme Court of Florida”); Carr
v. Carr, 569 So. 2d 903, 903 (Fla. 4th DCA 1990) (explaining that “we must
follow the law of our own cases until we are overruled or until we recede
from them”).
Because this court is bound by Atwood and its progeny, the majority’s
reliance upon post-Nicastro cases from other jurisdictions is misplaced. In
any event, while the majority cites cases from other jurisdictions applying
a narrow conception of the stream-of-commerce doctrine, the stream-of-
commerce case law from other jurisdictions is hardly uniform. Indeed,
some out-of-state cases have found the exercise of personal jurisdiction to
be proper where a nonresident defendant placed its products into the
stream of commerce with the reasonable expectation that substantial sales
would take place in the forum state. See, e.g., Ainsworth v. Moffett Eng’g,
Ltd., 716 F.3d 174, 179 (5th Cir. 2013) (holding that Mississippi’s exercise
of personal jurisdiction over an Irish forklift manufacturer in a products
liability action did not violate the manufacturer’s due process rights, as
the manufacturer could have reasonably anticipated being haled into
court in Mississippi where its distributor sold 203 forklifts, worth about
3 For example, the Florida Supreme Court’s decision in Venetian Salami Co. v.
Parthenais, 554 So. 2d 499 (Fla. 1989), which did not even mention Atwood, did
not somehow overrule it. See Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)
(proclaiming that the Florida Supreme Court “does not intentionally overrule
itself sub silentio”).
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$3,950,000, to customers in Mississippi); State v. LG Elecs., Inc., 375 P.3d
1035, 1042 (Wash. 2016) (explaining that Nicatsro “did not foreclose an
exercise of personal jurisdiction over a foreign defendant where a
substantial volume of sales took place in a state as part of the regular flow
of commerce”), cert. denied sub nom. Koninklijke Philips N.V. v. Washington,
137 S. Ct. 648 (2017).
Put simply, because the United States Supreme Court has not yet
articulated a clear standard for stream-of-commerce cases, the outcome
of this case is dictated by precedents from the Florida Supreme Court and
this court. The applicable standard, therefore, is that Florida may exercise
personal jurisdiction over a nonresident manufacturer who serves
Florida’s market by “continuous and systematic activity indirectly through
others,” notwithstanding the manufacturer’s “lack of direct presence and
activity within the borders of Florida.” Atwood, 392 So. 2d at 1313. In
other words, minimum contacts exist where a nonresident manufacturer
places its products into the stream of commerce with the expectation that
large quantities of the products would ultimately be sold in the forum
state. McHugh, 547 So. 2d at 319.
Here, Imerys has not disputed the plaintiff’s allegation that Imerys
supplied Johnson & Johnson with the talc for its baby powders “at all
material times,” which the plaintiff alleged was “multiple decades” before
she was diagnosed with cancer in 2013. Because Imerys has not disputed
the allegation that it placed its talc into the stream of commerce over
“multiple decades” with the knowledge and intent that it would be sold in
Florida, I would find that the exercise of personal jurisdiction over Imerys
does not violate due process. 4
In short, this is not a case involving a single isolated sale or even
multiple occasional sales. The relevant allegations of the plaintiff’s
complaint have not been disputed, and they demonstrate “continuous and
systematic activity” by Imerys to serve the Florida market. Where a
nonresident manufacturer’s components move through the stream of
commerce in a “continuous and systematic” effort to serve the forum
state’s market, the fact that the manufacturer “takes no part in the sale,
4 This case is readily distinguishable from Stevenson v. Cyprus Amax Minerals
Co., 617CV417ORL40DCI, 2018 WL 3361884, at *1 (M.D. Fla. July 10, 2018),
cited by the majority. There, the plaintiff claimed to have been exposed to
asbestos-contaminated talc powder between 1942 and 1985, but the evidence
showed that Imerys’ predecessor supplied Johnson & Johnson with talc for just
one month in 1980. By contrast, in this case, the plaintiff has alleged “multiple
decades” of exposure to Imerys’ talc.
14
distribution, or marketing of the finished product in the state is no basis
for a limitation on jurisdiction.” Atwood, 392 So. 2d at 1310, 1313. Here,
the trial court’s ruling is supported by the undisputed jurisdictional
allegations in the complaint and by governing Florida case law.
We should therefore affirm the order denying the talc company’s motion
to dismiss this products liability action for lack of personal jurisdiction.
* * *
Not final until disposition of timely filed motion for rehearing.
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