Viega GmbH v. Eighth Jud. Dist. Ct.

130 Nevi, Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
40
VIEGA GMBH; AND VIEGA No. 59976
INTERNATIONAL GMBH,
Petitioners,
vs.
FILED
THE EIGHTH JUDICIAL DISTRICT MAY 2 9 2014
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
SUSAN JOHNSON, DISTRICT JUDGE,
Respondents,
and
AVENTINE-TRAMONTI
HOMEOWNERS' ASSOCIATION,
Real Party in Interest.
Original petition for a writ of prohibition challenging a district
court order denying motions to dismiss for lack of personal jurisdiction.
Petition granted.
Fennemore Craig, P.C., and John H. Mowbray, Janice Proctor-Murphy,
and Kevin M. Green, Las Vegas; Lincoln, Gustafson & Cercos and
Nicholas B. Salerno and Christopher A. Turtzo, Las Vegas; Carroll
Burdick & McDonough and Matthew J. Kemner, San Francisco,
California,
for Petitioners.
Canepa Reidy & Rubino and Scott K. Canepa and Terry W. Reidy, Las
Vegas; Carraway & Associates, LLC, and James D. Carraway, Las Vegas;
Kemp, Jones & Coulthard, LLP, and J. Randall Jones, Las Vegas; Lynch,
Hopper & Salzano LLP and Francis I. Lynch, Las Vegas; Maddox,
Isaacson & Cisneros and Robert C. Maddox, Las Vegas,
for Real Parties in Interest.
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BEFORE THE COURT EN BMW.'
OPINION
By the Court, HARDESTY, J.:
In this original petition for a writ of prohibition, two foreign
companies challenge the Nevada district court's assertion of personal
jurisdiction over them. The district court asserted jurisdiction after
determining that the foreign companies' American subsidiaries acted as
their agents and then attributing to them the subsidiaries' Nevada
contacts. The foreign companies argue that, in so doing, the district court
violated due process.
We agree. Although a Nevada plaintiff may establish personal
jurisdiction over nonresident parent companies by showing that their
subsidiaries acted in the forum as the parents' agents, so that the
subsidiaries' local contacts can be imputed to the parents, no agency
relationship was shown here. Accordingly, in imputing the subsidiaries'
contacts to the foreign parents here, the district court exceeded its
jurisdiction, warranting writ relief.
FACTS AND PROCEDURAL HISTORY
Petitioners Viega GmbH and Viega International GmbH are
German limited liability corporations. Viega GmbH designs and
manufactures plumbing and heating components in Germany. Viega
GmbH wholly owns Viega International, a holding company for Viega
'Following oral argument before a three-judge panel, this matter
was transferred to the en banc court pursuant to TOP Rule 13(b). The
Honorable Ron D. Parraguirre, Justice, voluntarily recused himself from
participation in the decision of this matter.
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GmbH's international subsidiaries. In turn, Viega International wholly
owns Viega Inc., a holding company incorporated in Delaware. Viega Inc.
owned Viega NA, Inc., which sold Viega GmbH's plumbing products in the
United States.
In October 2005, Viega Inc. purchased Vanguard, LLC, a
Kansas-based yellow brass plumbing parts manufacturer and distributer.
As part of the purchase, Viega Inc. assumed Vanguard's liabilities. In
2007, Viega Inc. then formed Viega LLC, a Delaware limited liability
company headquartered in Kansas, to integrate Viega NA and Vanguard,
along with a third company, into one entity. Viega LLC owns a
distribution center in Reno and regularly conducts business in this state.
According to real party in interest, Viega Inc. and Viega LLC are the sole
means by which Viega GmbH and Viega International conduct any
activities in, and by which Viega products enter, the American plumbing
market. For purposes of this case, the parties do not dispute that Viega
Inc. and Viega LLC are subject to personal jurisdiction in Nevada.
Prior to Viega Inc.'s 2005 purchase of Vanguard and
assumption of its liabilities, Vanguard's yellow brass plumbing parts were
distributed and installed in the Aventine-Tramonti common interest
community in Las Vegas, Nevada. Asserting that the plumbing parts
were defective, in 2008, real party in interest, the Aventine-Tramonti
Homeowners' Association, filed a construction defect complaint that
named, among others, Vanguard, Viega Inc., and Viega LLC as being
responsible for the production, distribution, and sale of the allegedly faulty
plumbing parts.
The HOA later amended its complaint to add Viega GmbH
and Viega International as defendants. Both German companies moved to
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dismiss the complaints, arguing that the district court lacked personal
jurisdiction over them because neither company had a direct connection to
Nevada, manufactured or distributed the allegedly faulty plumbing parts,
or had responsibility or control over the American subsidiaries such that
the subsidiaries' contacts with Nevada could be imputed to the German
companies.
The district court held a nonevidentiary hearing on the
motions, after which the court concluded that the HOA had made a prima
facie showing of general and specific personal jurisdiction and thus denied
the German companies' motions to dismiss. In determining whether the
German companies' contacts with Nevada were sufficient to support the
exercise of jurisdiction over them, the district court considered (1) whether
the German companies exercised "pervasive and continual" control over
Viega Inc. and whether Viega Inc. was sufficiently important to the
German Viega companies such that they would undertake Viega Inc.'s
activities if it did not exist. The district court found that the HOA had
demonstrated that, although Viega GmbH, Viega International, and Viega
Inc. were separately created entities, they essentially acted as one
company. As a result, the court concluded, Viega Inc.'s contacts with
Nevada could be imputed to Viega GmbH and Viega International. Based
on those contacts, the district court held that both Viega GmbH and Viega
International were subject to personal jurisdiction in Nevada. This writ
petition followed. 2 Because the parties largely refer to Viega Inc. and
2Although we have considered the supplemental memorandum and
responses thereto requested by this court, we deny the Viega GmbH and
Viega International's January 22, 2014, motion to supplement the record
on appeal and request for additional supplemental briefing.
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Viega LLC as "American Viega" and to Viega International and Viega
GmbH as "German Viega" and do not assert that they should be viewed
differently, we do likewise.
DISCUSSION
A writ of prohibition is available to arrest or remedy district
court actions taken without or in excess of jurisdiction. NRS 34.320; State,
Office of the Attorney Gen. v. Eighth Judicial Dist. Court (Anzalone), 118
Nev. 140, 146-47, 42 P.3d 233, 237 (2002). Writ relief is an extraordinary
remedy that this court will only "exercise [its] discretion to
consider. . . when there is no plain, speedy and adequate remedy in the
ordinary course of law." Cheung v. Eighth Judicial Dist. Court, 121 Nev.
867, 869, 124 P.3d 550, 552 (2005) (internal quotations marks omitted);
NRS 34.330. As no adequate and speedy legal remedy typically exists to
correct an invalid exercise of personal jurisdiction, a writ of prohibition is
an appropriate method for challenging district court orders when it is
alleged that the district court has exceeded its jurisdiction. South Fork
Band, Te-Moak Tribe v. Sixth Judicial Dist. Court, 116 Nev. 805, 811, 7
P.3d 455, 459 (2000). Because Viega GmbH and Viega International
challenge the validity of the district court's exercise of jurisdiction over
them, we exercise our discretion to consider this writ petition.
Establishing personal jurisdiction over a nonresident parent company
To avoid dismissal of the German Viega companies at this
stage of the proceedings below, the HOA was required to make a prima
facie showing with "competent evidence of essential facts" that, if true,
would support jurisdiction. Trump v. Eighth Judicial Dist. Court, 109
Nev. 687, 692, 857 P.2d 740, 743 (1993) (internal quotation marks
omitted). "The court may consider evidence presented in affidavits to
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assist it in its determination," Doe v. Unocal Corp., 248 F.3d 915, 922 (9th
Cir. 2001), and the court must accept properly supported proffers of
evidence as true. Trump, 109 Nev. at 692, 857 P.2d at 743. When factual
disputes arise, "those disputes must be resolved in favor of the plaintiff."
Id. at 693, 857 P.2d at 744 (internal quotation marks omitted). Once a
prima facie showing is made, the plaintiff then bears the burden at trial to
prove jurisdiction by a preponderance of evidence. Trump, 109 Nev. at
693, 857 P.2d at 744. As a question of law, the district court's
determination of personal jurisdiction is reviewed de novo, even in the
context of a writ petition. Hosp. Corp. of Am. v. Second Judicial Dist.
Court, 112 Nev. 1159, 1160, 924 P.2d 725, 725 (1996).
Jurisdiction over a nonresident defendant is proper only if the
plaintiff shows that the exercise of jurisdiction satisfies the requirements
of Nevada's long-arm statute and does not offend principles of due process.
Arbella Mut. Ins. Co. v. Eighth Judicial Dist. Court, 122 Nev. 509, 512,
134 P.3d 710, 712 (2006); see also Consipio Holding, BV v. Carlberg, 128
Nev. , 282 P.3d 751, 754 (2012) ("Nevada's long-arm statute
permits personal jurisdiction over a nonresident defendant unless the
exercise of jurisdiction would violate due process."). Nevada's long-arm
statute, NRS 14.065, reaches the constitutional limits of due process under
the Fourteenth Amendment, which requires that the defendant have such
minimum contacts with the state that the defendant could reasonably
anticipate being haled into court here, thereby complying with "traditional
notions of fair play and substantial justice." Arbella, 122 Nev. at 512, 134
P.3d at 712 (internal quotation marks omitted) (citing Intl Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Accordingly, we must look to
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whether the exercise of jurisdiction over Viega GmbH and Viega
International comports with due process.
Due process requirements are satisfied if the nonresident
defendants' contacts are sufficient to obtain either (1) general jurisdiction,
or (2) specific personal jurisdiction and it is reasonable to subject the
nonresident defendants to suit here. Arbella, 122 Nev. at 512, 516, 134
P.3d at 712, 714; see Daimler AG v. Bauman, 571 U.S. , n.20, 134 S.
Ct. 746, 762 n.20 (2014). A court may exercise general jurisdiction over a
foreign company when its contacts with the forum state are so
"continuous and systematic' as to render [it] essentially at home in the
forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
, 131 S. Ct. 2846, 2851(2011) (citing Int'l Shoe Co. v. Washington,
326 U.S. 310, 317 (1945)); see also Arbella, 122 Nev. at 513, 134 P.3d at
712 ("[G]eneral personal jurisdiction exists when the defendant's forum
state activities are so substantial or continuous and systematic that it is
considered present in that forum and thus subject to suit there, even
though the suit's claims are unrelated to that forum." (internal quotations
marks omitted)). Specific personal jurisdiction arises when the defendant
purposefully enters the forum's market or establishes contacts in the
forum and affirmatively directs conduct there, and the claims arise from
that purposeful contact or conduct. Arbella, 122 Nev. at 513, 134 P.3d at
712-13.
The parties agree that neither Viega GmbH nor Viega
International directly engages in business in Nevada. Rather, the HOA
attempts to establish both general and specific personal jurisdiction over
these companies based on the Nevada contacts of their American
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subsidiaries, which concededly are subject to the jurisdiction of the
Nevada court for resolution of this matter.
But corporate entities are presumed separate, and thus, the
mere "existence of a relationship between a parent company and its
subsidiaries is not sufficient to establish personal jurisdiction over the
parent on the basis of the subsidiaries' minimum contacts with the forum."
Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001); see also McCulloch
Corp. v. O'Donnell, 83 Nev. 396, 399, 433 P.2d 839, 840-41 (1967) (holding
that "[t]he mere fact of stock ownership by one corporation in another does
not authorize jurisdiction over the stockholder corporation"). Subsidiaries'
contacts have been imputed to parent companies only under narrow
exceptions to this general rule, including "alter ego" theory and, at least in
cases of specific jurisdiction, the "agency" theory. Unocal Corp., 248 F.3d
at 926. The alter ego theory allows plaintiffs to pierce the corporate veil to
impute a subsidiary's contacts to the parent company by showing that the
subsidiary and the parent are one and the same. See, e.g., Goodyear, 564
U.S. at , 131 S. Ct. at 2857 (implying, but not deciding, that an alter
ego theory would be appropriate in such a situation); see also Platten v.
HG Bermuda Exempted, Ltd., 437 F.3d 118, 139 (1st Cir. 2006); Patin v.
Thoroughbred Power Boats, Inc., 294 F.3d 640, 653 (5th Cir. 2002). The
rationale behind this theory is that the alter ego subsidiary is the same
entity as its parent, and thus, the jurisdictional contacts of the subsidiary
are also jurisdictional contacts of the parent. Patin, 294 F.3d at 653.
Unlike with the alter ego theory, the corporate identity of the parent
company is preserved under the agency theory; the parent nevertheless "is
held for the acts of the [subsidiary] agent" because the subsidiary was
acting on the parent's behalf. F. Hoffman-La Roche, Ltd. v. Superior
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Court, 30 Cal. Rptr. 3d 407, 418 (Ct. App. 2005) (internal quotations
marks omitted); Wesley—Jessen Corp. v. Pilkington Visioncare, Inc., 863 F.
Supp. 186, 188-89 (D. Del. 1993) ("This [agency] theory does not treat the
parent and subsidiary as one entity, but rather attributes specific acts to
the parent because of the parent's authorization of those acts.").
Here, the German Viega companies assert that they neither
are alter egos of their subsidiaries nor have an agency relationship with
them to support the district court's attribution of contacts. The HOA,
however, asserts that the American subsidiaries serve as the German
Viega companies' agents and, thus, that the subsidiaries' Nevada contacts
can be used to support the district court's findings of both general and
specific jurisdiction.
Agency and general jurisdiction
As noted, general jurisdiction over a defendant allows a
plaintiff to assert claims against that defendant unrelated to the forum.
Such broad jurisdiction is available only in limited circumstances,
however. "A court may assert general jurisdiction over foreign (sister-
state or foreign-country) corporations to hear any and all claims against
them when their affiliations with the State are so 'continuous and
systematic' as to render them essentially at home in the forum State."
Goodyear, 564 U.S. at , 131 S. Ct. at 2851. Typically, a corporation is
"at home" only where it is incorporated or has its principal place of
business. See Daimler AG, 571 U.S. at & n.19, 134 S. Ct. at 760 &
761 n.19 (discussing Goodyear, 564 U.S. at , 131 S. Ct. at 2853-54). In
Daimler AG v. Bauman, the United States Supreme Court concluded that
a foreign parent corporation was not amenable to general jurisdiction in
California as the principal of its subsidiary when neither it nor the
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subsidiary was incorporated in or had its principal place of business in
California, even though the subsidiary conducted substantial business
there. 571 U.S. at 134 S. Ct. at 761-62.
This case is no different. The HOA has not alleged that either
German Viega or American Viega are incorporated in or hold their
principal places of business in Nevada. Nor has it asserted any other
circumstances by which to show that German Viega, even with contacts
imputed from American Viega, has formed a relationship with Nevada
that is so continuous and systematic as to be considered at home in this
state. Thus, even if the American Viega companies exist solely to serve at
the direction of their foreign parent and therefore can be considered
agents of German Viega, general jurisdiction cannot lie.
Agency and specific jurisdiction
With regard to specific jurisdiction, we have previously
recognized that a plaintiff may establish personal jurisdiction over a
nonresident defendant "by attributing the contacts of the defendant's
agent with the forum to the defendant." Trump v. Eighth Judicial Dist.
Court, 109 Nev. 687, 694, 857 P.2d 740, 745 (1993); see In re Amerco
Derivative Litig., 252 P.3d 681, 695 (2011) ("Under basic corporate agency
law, the actions of corporate agents are imputed to the corporation."). And
in Hospital Corp. of America v. Second Judicial District Court, we
summarily extended this concept to the subsidiary-parent relationship,
recognizing that a prima facie showing of personal jurisdiction over foreign
parent corporations can be established by evidence demonstrating "agency
or control" by the parent corporations over their local subsidiaries. 112
Nev. 1159, 1161, 924 P.2d 725, 726 (1996); see also Daimler AG, 571 U.S.
at n.13, 134 S. Ct. at 759 n.13 (indicating that an agency relationship
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may be used to establish specific jurisdiction and noting that "a
corporation can purposefully avail itself of a forum by directing its agents
or distributors to take action there"); C.R. Bard, Inc. v. Guidant Corp., 997
F. Supp. 556, 560 (D. Del. 1998) ("Under the agency theory, the court may
attribute the actions of a subsidiary company to its parent where the
subsidiary acts on the parent's behalf or at the parent's direction.").
Generally, an agency relationship is formed when one person
has the right to control the performance of another. Trump, 109 Nev. at
695 n.3, 857 P.2d at 745 n.3; Restatement (Second) of Agency § 14 (1958)
(providing that an agency relationship exists when the principal possesses
the right to control the agent's conduct). In the corporate context,
however, the relationship between a parent company and its wholly owned
subsidiary necessarily includes some elements of control. Sonora
Diamond Corp. v. Superior Court, 99 Cal. Rptr. 2d 824, 838 (Ct. App.
2000) ("The relationship of owner to owned contemplates a close financial
connection between parent and subsidiary and a certain degree of
direction and management exercised by the former over the latter.").
Corporate entities are presumed separate, and thus, indicia of mere
ownership are not alone sufficient to subject a parent company to
jurisdiction based on its subsidiary's contacts. F. Hoffman-La Roche, Ltd.
v. Superior Court, 30 Cal. Rptr. 3d 407, 418 (Ct. App. 2005); Sonora, 99
Cal. Rptr. 2d at 838 ("We start with the firm proposition that neither
ownership nor control of a subsidiary corporation by a foreign parent
corporation, without more, subjects the parent to the jurisdiction of the
state where the subsidiary does business." (citing Cannon Mfg. Co. v.
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Cudahy Packing Co., 267 U.S. 333, 336 (1925)));3 see MGM Grand, Inc. v.
Eighth Judicial Dist. Court, 107 Nev. 65, 68-69, 807 P.2d 201, 203 (1991)
(holding that Walt Disney Company's Nevada subsidiaries' contacts could
not be imputed to Disney because it "exercise [d] no more control over its
[Nevada] subsidiaries •than [wa[s appropriate for a sole shareholder of a
corporation"); Restatement (Second) of Agency § 14M (1958) (discussing
when a subsidiary can be considered an agent of its parent corporation).
Further, as pointed out by the Supreme Court, agencies can
vary widely in scope and purpose. Daimler AG, 571 U.S. at , 134 S. Ct.
at 759 ("Agencies, we note, come in many sizes and shapes: 'One may be
an agent for some business purposes and not others so that the fact that
one may be an agent for one purpose does not make him or her an agent
for every purpose." (quoting 2A C.J.S. Agency § 43 (2013) (footnote
omitted))). In this case, the HOA broadly asserts that the American
subsidiaries serve as the German companies' agents for all purposes
concerning their plumbing activities in America—in other words, that the
subsidiaries' sole purpose is to establish German Viega's presence here.
When describing such a broad agency relationship between a
parent company and its subsidiary, the control at issue must not only be of
a degree "more pervasive than. . . common features" of ownership, "[i] t
must veer into management by the exercise of control over the internal
affairs of the subsidiary and the determination of how the company will be
3 Although Sonora is based on the premise that agency in this
context supports a finding of general jurisdiction, the Supreme Court has
recognized that agency typically is more useful to a specific jurisdiction
analysis. Daimler AG, 571 U.S. at n.13, 134 S. Ct. at 759 n.13
(indicating that an agency relationship may be used to establish specific
jurisdiction).
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operated on a day-to-day basis," such that the parent has "moved beyond
the establishment of general policy and direction for the subsidiary and in
effect taken over performance of the subsidiary's day-to-day operations in
carrying out that policy." F. Hoffman-La Roche, 30 Cal. Rptr. 3d at 418-
19; Enic, PLC v. F.F. South St Co., Inc., 870 So. 2d 888, 891-92 (Fla. Dist.
Ct. App. 2004) ("The amount of control exercised by the parent must be
high and very significant. . . . The parent corporation, to be liable for its
subsidiary's acts under the . .. agency theory, must exercise control to the
extent the subsidiary manifests no separate corporate interests of its own
and functions solely to achieve the purposes of the dominant corporation."
(internal quotations marks and citations omitted)); Applied Biosystems,
Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1463 (D. Del. 1991) ("The
factors relevant to this determination include the extent of overlap of
officers and directors, methods of financing, the division of responsibility
for day-to-day management, and the process by which each corporation
obtains its business."); see generally Hunter Min. Laboratories, Inc. v.
Mgmt. Assistance, Inc., 104 Nev. 568, 571, 763 P.2d 350, 352 (1988) ("Only
when a manufacturer controls the day to day or operative details of the
dealer's business is an agency potentially created ") This may be the case
in instances "where the local entity as agent essentially exists only to
further the business of the foreign entity, and but for the domestic entity's
existence, the foreign entity would be performing those functions in the
forum itself." F. Hoffman-La Roche, 30 Cal. Rptr. 3d at 419 (citing Sonora
Diamond Corp. v. Superior Court, 99 Cal. Rptr. 2d 824 (Ct. App. 2000)).
"The doctrine supports jurisdiction 'when the local subsidiary performs a
function that is compatible with, and assists the parent in the pursuit of,
the parent's own business." Id. (quoting Sonora, 99 Cal. Rptr. 2d 824).
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Thus, where the nature and extent of the control
exercised over the subsidiary by the parent is so
pervasive and continual that the subsidiary may
be considered nothing more than an agent or
instrumentality of the parent, notwithstanding
the maintenance of separate corporate formalities,
jurisdiction over the parent may be grounded in
the acts of the subsidiary/agent.
Sonora, 99 Cal. Rptr. 2d at 837-38. With these principles in mind, we turn
to whether the HOA has established a prima facie showing of personal
jurisdiction over Viega GmbH and Viega International under the agency
theory.
Assertion of personal jurisdiction over Viega GmbH and Viega
International
The parties do not dispute that Viega Inc.'s 2005 purchase of
the Vanguard companies and assumption of liabilities subjects Viega Inc.
to jurisdiction in Nevada in this litigation concerning Vanguard's
installation of yellow brass plumbing fixtures in the Aventine-Tramonti
Community homes. The HOA argues, in essence, that Viega Inc.
purchased and assumed the liabilities of the Vanguard companies directly
on behalf of Viega Germany, so as to further the German companies'
activities in the United States in general, and in Nevada in particular.
They assert that this agency relationship is shown both by the control that
the German Viega entities exercise over the American companies and by
the fact that the American companies exist as German Viega's sole basis
for American marketing and operations. In other words, they contend
that American Viega is merely a branch division of German Viega's
plumbing operations as a whole and, as such, effectively purchased
Vanguard and assumed its Nevada-based liabilities directly on behalf of
the German companies.
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To demonstrate this interdependence, the HOA points to
various Viega websites, which refer to all of the Viega entities simply as
"Viega," a unified global enterprise with operations in America, sharing
the same corporate logo. The HOA notes that a German Viega board
member serves on the American Viega boards of directors and that
American Viega submits monthly reports to German Viega for review by a
German management board. Through this structure, the BOA claims,
German Viega controls the hiring of Viega Inc.'s executive officers, who
must obtain approval from German Viega before entering into any large
financial transactions. But these factors merely show the amount of
control typical in a parent-subsidiary relationship and thus are
insufficient to demonstrate agency. See F. Hoffman-La Roche, 30 Cal.
Rptr. 3d at 418 (noting that control by means of interlocking directors and
officers, consolidated reporting, and shared professional services is
normal); Sonora, 99 Cal. Rptr. 2d at 845 (explaining that monitoring a
subsidiary's performance, supervising the subsidiary's budget decisions,
and setting general policies and procedures are typical of the parent-
subsidiary relationship); Round Rock Research L.L.C. v. ASUSTeK
Computer Inc., No. 11-978-RGA, 2013 WL 4478231, at *1 (D. Del. August
20, 2013) (concluding that personal jurisdiction based on agency was not
demonstrated through evidence of overlapping directors and other facts
reflecting the parent-subsidiary relationship, even though the two
companies shared the same goals, when there was no showing of oversight
of day-to-day activities or that the parent authorized the sales at issue in
the case).
While the HOA also points out that Viega Inc. is a holding
company with no working structure, such that its executive operations and
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business is conducted through Viega LLC, the HOA has not asserted that
Viega Inc. has no assets or made any connection between its lack of
corporate structure to German Viega's above-normal control. And even if,
as the HOA asserts, American Viega is German Viega's agent for
American operations and the face of American marketing, the HOA has
not shown that that particular agency has resulted in the basis for the
claims at issue here—the Vanguard plumbing products or the purchase of
Vanguard and assumption of its liabilities. The fact that German Viega
created American subsidies to conduct business in Nevada does not itself
demonstrate agency. Sonora, 99 Cal. Rptr. 2d at 544-45 ("However, we
have already pointed out that a parent corporation's formation and
ownership of an independent subsidiary for the purpose of conducting
business in the forum state does not itself subject the parent to
jurisdiction in that state."). Further, sending representatives to attend
meetings and a grand opening in Kansas does not show that Viega
Germany is managing the day-to-day activities of the American Viega
activities in Nevada. Although both American Viega and German Viega
are engaged in the plumbing business, the subsidiaries have their own
production and distribution facility in Kansas, and German Viega has
claimed that it does not sell the type of plumbing fixtures at issue here.
This is not enough to show that, through the American Viega
subsidiaries, Viega Germany purposefully availed itself of the privileges of
doing business in Nevada, much less that it did so when Viega Inc.
assumed the liabilities of Vanguard. 4 See Daimler AG, 571 U.S. at
4 The concurring justices assert that ourS discussion avoids the
question that must be asked in determining specific jurisdiction—whether
German Viega's activities in Nevada led to the claims at issue here—and
continued on next page...
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n.13, 134 S. Ct. at 759 n.13 (indicating that an agency relationship may be
used to establish specific jurisdiction when a corporate entity purposefully
directs its agent to engage in activities in the forum) While the HOA
insists that these facts are sufficient at least to allow it to proceed with
jurisdictional discovery for the purpose of obtaining evidence to prove
personal jurisdiction over the German Viega entities, it has shown no
more than a typical parent-subsidiary relationship, the separateness of
which is a basic premise of corporate law. As the Second Circuit Court of
Appeals has recognized, such problems in overcoming the presumption of
separateness are inherent in attempting to sue a foreign corporation that
is part of a carefully structured corporate family, and courts may not
create exceptions to get around them:
...continued
ignores the simple answer that they did not, instead focusing on whether
an agency relationship currently exists. But while the HOA focused
"almost" solely on general jurisdiction, it also raised—and analyzed—the
issue of specific jurisdiction, arguing that the German Viega's relationship
with its subsidiaries demonstrated an overall intent to purposefully avail
itself in Nevada, before and after the purchase of Vanguard, through its
subsidiary agents, including with their purchase of Vanguard and
assumption of its liabilities on German Viega's behalf. It is true we did
not directly reach the question the concurring justices ask, although we
noted that no such connection between the alleged agency and the claims
was made. Supra at 15. This is because in responding to the HOA's
argument, we concluded that, regardless, it had not shown an agency
relationship at all. We do not answer questions rendered moot by the
decision first reached, and thus our discussion of that decision does not
lead to the conclusion that any proven, broad agency relationship
necessarily results in specific jurisdiction. As stated earlier in this
opinion, supra at 7 & 10, an agency relationship might be used to establish
contacts sufficient for specific jurisdiction, so long as the contacts as an
agent led to the claims at hand.
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We recognize that without discovery it may be
extremely difficult for plaintiffs ... to make a
prima facie showing of jurisdiction over a foreign
corporation. . . . [But] [t]he rules governing
establishment of jurisdiction over such a foreign
corporation are clear and settled, and it would be
inappropriate for us to deviate from them or to
create an exception to them because of the
problems plaintiffs may have in meeting their
somewhat strict standards.
Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 186 (2d Cir. 1998).
Accordingly, for the reasons set forth above, we grant the petition and
direct the clerk of the court to issue a writ of prohibition precluding the
district court from allowing the case to proceed against the German Viega
comp anie s . 5
-Attat.
-
J.
Hardesty
We concur:
5 J.
Douglas
J.
J.
Saitta
In light of this opinion, we vacate our June 13, 2012, order staying
5
thefl district court proceedings pertaining to Viega GmbH and Viega
International.
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PICKERING, J., with whom GIBBONS, C.J., agrees, concurring in the
result only:
I agree that Viega GmbH and Viega International did not
submit to personal jurisdiction in Nevada when they acquired a subsidiary
whose pre-acquisition activities had given rise to claims against it in
Nevada. I write separately because I would resolve this case on the basis
that the foreign defendants' "contact" (the acquisition of a subsidiary that
committed a tort in Nevada) did not give rise to the claim asserted against
them (the tort committed by the acquired company), thus defeating
specific jurisdiction. The Ninth Circuit's "agency" test, on which the
majority relies, has been discredited as a basis for general jurisdiction
and, as formulated, does not create specific jurisdiction either.
"A court may assert general [personal] jurisdiction over
foreign (sister-state or foreign-country) corporations to hear any and all
claims against them when their affiliations with the State are so
"continuous and systematic" as to render them essentially at home in the
forum State." Daimler AG v. Bauman (Bauman II), 571 U.S. „ 134
S. Ct. 746, 754 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. , 131 S. Ct. 2846, 2851 (2011)). If such
"continuous and systematic" affiliations do not exist, the defendant
corporations must have "purposefully directed' [their] activities at
residents of the forum, and the litigation [must] resultr] from alleged
injuries that 'arise out of or relate to' those activities" so that the court may
exercise specific personal jurisdiction. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472 (1985) (citation omitted) (quoting Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 774 (1984) (emphasis added); Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). Viega
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GmbH's and Viega International's only affiliations with and activities in
Nevada were accomplished through their second- and third-tier
subsidiary, Vanguard, so a Nevada court may only exercise personal
jurisdiction over the German corporations if Vanguard's conduct in
Nevada can properly be imputed to them for general or specific personal
jurisdiction purposes.
Under the principle of corporate separateness, the actions of a
subsidiary company are generally not attributable to its parent
corporation. See Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003).
But this principle may yield where a subsidiary is so dominated by its
parent that the two corporations are, as a practical matter, the same
entity or "alter egos," and recognizing their corporate separateness would
sanction fraud or promote injustice. See, e.g., Publicker Indus., Inc. v.
Roman Ceramics Corp., 603 F.2d 1065, 1069 (3d Cir. 1979); Polaris Indus.
Corp. v. Kaplan, 103 Nev. 598, 601, 747 P.2d 884, 886 (1987). By
extension, jurisdiction over a parent corporation can be established on an
alter ego theory where there is such unity of interest and ownership that
in reality no separate entities exist and failure to disregard the separate
identities would result in fraud or injustice. Am. Tel. & Tel. Co. v.
Compagnie Bruxelles Lambert, 94 F.3d 586, 591 (9th Cir. 1996). But an
alter ego theory does not apply here, because the HOA does not allege that
Vanguard is Viega GmbH's and Viega International's alter ego, and the
HOA conceded at argument that the Viega defendants did not loot or
damage Vanguard's solvency when they acquired it through an American
subsidiary. See Polaris, 103 Nev. at 601, 747 P.2d at 886.
Although neither alter ego nor successor liability is alleged or
established, the majority resorts to the more controversial "agency" test as
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formulated by the Ninth Circuit in Bauman v. DaimlerChrysler
Corporation (Bauman I), 644 F.3d 909 (9th Cir. 2011), reo'd sub nom.
Daimler AG v. Bauman, 571 U.S. „ 134 S. Ct. 746, 762-63 (2014).
As formulated by the majority, this test would allow Nevada courts to
impute contacts from a subsidiary to a parent corporation for purposes of
specific jurisdiction wherever "'the local subsidiary performs a function
that is compatible with, and assists the parent in the pursuit of, the
parent's own business." Majority opinion at 13 (quoting F. Hoffman-La
Roche, Ltd. v. Superior Court, 30 Cal. Rptr. 3d 407, 419 (Ct. App. 2005)).
The majority then holds that this court lacks specific jurisdiction over
Viega GmbH and Viega International even after applying this test. Thus
its suggestion that this court might, given hypothetical facts other than
those before it, impute contacts from a subsidiary to a parent corporation
for specific jurisdiction purposes via this "agency" theory is dicta.
The HOA argued almost exclusively for general jurisdiction
under Bauman Ts "agency" theory. And as the majority admits, following
the Supreme Court decision in Bauman II, 571 U.S. at , 134 S. Ct. at
746, which reversed Bauman I, that argument is now defunct. "With
respect to a corporation, the place of incorporation and principal place of
business are paradigm bases for general jurisdiction." Bauman II, 571
U.S. at , 134 S. Ct. at 760 (internal quotations omitted). Viega GmbH,
Viega International, and Vanguard are neither incorporated in Nevada
nor have their principal places of business here. There may be other bases
for general jurisdiction beyond these paradigm examples, but even if
Vanguard's contacts are imputed to Viega GmbH and Viega International,
no such base is present here. If Vanguard's conduct in Nevada and its
relationship with Viega GmbH and Viega International sufficed to
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establish general jurisdiction over the German companies, "the same
global reach would presumably be available in every other State in which
[the subsidiary's] sales are sizable. Such exorbitant exercises of all-
purpose jurisdiction would scarcely permit out-of-state defendants 'to
structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit," as due
process requires. Id. at 761-62 (quoting Burger King Corp., 471 U.S. at
472).
With agency-based general jurisdiction eliminated by Bauman
II, this court should have allowed the parties to submit supplemental
briefs on specific jurisdiction post-Bauman 11. 1 But we denied the request
for further supplemental briefing, and so are left with the general
jurisdiction "agency" test stated in Bauman 1, 2 awkwardly recast without
meaningful revision as a basis for specific jurisdiction.
A subsidiary corporation is one that is subordinate to and
under a parent's control. Black's Law Dictionary 1565 (9th ed. 2009). So,
'The parties' pre-Bauman insistence on an expansive agency theory
of general jurisdiction also lost force when one of the two consolidated
petitions seeking to establish personal jurisdiction over the Viega
defendants settled. The claims in the settled case arose out of work by
Vanguard that continued post-acquisition, unlike the claims in this
matter.
2 Because the terms "agency" and "agent" are terms of art with legal
definitions that the majority's test does not reflect, see Grand Hotel Gift
Shop v. Granite State Ins. Co., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992)
(defining an agency relationship as "when one who hires another retains a
contractual right to control the other's manner of performance"), this
concurrence uses quotation marks where it uses the terms to denote a
relationship that satisfies the majority's test.
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presumably, a subsidiary's function will always be "compatible" with the
business of its parent company, and its purpose will always be to "assist[ ]
the parent in the pursuit of[ ] the parent's own business." Thus, the
majority's specific jurisdiction "agency" test—whether "the local subsidiary
performs a function that is compatible with, and assists the parent in the
pursuit of, the parent's own business"—"stacks the deck, for it will
[almost] always yield a pro-jurisdiction answer." Bauman II, 571 U.S. at
, 134 S. Ct. at 759. Beyond this, the "agency" test the majority
proposes is not a specific jurisdiction test at all, for it dispenses with the
connection between the liability-producing act, the defendant, and the
forum state that define specific jurisdiction.
The same rules that govern corporate liability also "form the
foundation for determining when one juridical person's contacts will be
attributed to another." Brief for the United States as Amicus Curiae
Supporting Petitioner at 25, Bauman II, 571 U.S. , 134 S. Ct. 746
(2014) (No. 11-965). This legal foundation establishes that a principal
may be liable for the actions of its agent where it directed (or impliedly
authorized) its subsidiary to take the actions in question. See House of
Koscot Dev. Corp. v. Am. Line Cosmetics, Inc., 468 F.2d 64, 67 (5th Cir.
1972); Lear v. Bishop, 86 Nev. 709, 712-13, 713 n.1, 476 P.2d 18, 21 & n.1
(1970). Thus, in the specific jurisdiction context, "a corporation can
purposefully avail itself of a forum by directing its agents or distributors to
take action there" where that action produces the claim asserted against
the parent in the forum. See Bauman II, 571 U.S. at n13, 134 S. Ct.
at 759 n.13.
But neither Viega GmbH nor Viega International could
possibly have directed Vanguard to take the liability-producing action-
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Vanguard's installation of the allegedly defective pipes—because the
German companies did not acquire Vanguard until after that installation
was complete. So, even recognizing that the acts of an agent can subject
the principal to specific jurisdiction when the defendant directs the agent
to engage in liability-producing activity in the forum, this case does not
present that issue; the liability-producing acts here were faits accomplis
before the Viega defendants acquired Vanguard.
The majority avoids this issue and the simple conclusion to
which it leads; to wit, that the current existence of an "agency"
relationship between a parent and subsidiary has no relevance where, as
here, specific jurisdiction is claimed over the parent company and the
"agency" relationship was established after the subsidiary had already
completed the liability-producing work at issue. Instead the majority
blurs the line between general and specific jurisdiction by focusing on
Vanguard's contacts with this State generally and whether an "agency"
relationship currently exists between it and the German entities. By doing
so, the majority suggests that actions that a subsidiary takes prior to a
parent company's acquisition of it are imputable to that parent company
for specific jurisdiction purposes, so long as the subsidiary is the parent's
"agent" at the time litigation is brought.
This result defies the "basic agency law" that the majority
invokes, and to stark effect. For an exercise of specific jurisdiction to
comport with due process, the suit must arise "out of contacts that the
'defendant himself creates with the forum State." Walden v. Fiore, 571
U.S. „ 134 S. Ct. 1115, 1122 (2014) (quoting Burger King Corp., 471
U.S. at 475). This requirement is satisfied where a principal directs an
agent to take tortious action in a forum because that principal has itself
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created the relevant contacts with that forum. See Bauman II, 571 U.S. at
n.13, 134 S. Ct. at 759 n.13. But the majority's position suggests that
specific jurisdiction over the defendant corporations in this case might
have been proper even though such jurisdiction would have been based
upon the wholly unilateral actions taken by Vanguard before it was
acquired by the German Viegas. Were this court to exercise personal
jurisdiction using such a theory in the future, it would certainly violate
due process. See Helicopteros Nacionales, 466 U.S. at 417 (stating that
"unilateral activity of another party or a third person is not an appropriate
consideration when determining whether a defendant has sufficient
contacts with a forum State to justify an assertion of jurisdiction"); see also
Walden, 571 U.S. at , 134 S. Ct. at 1122 (noting that the Court has
"consistently rejected attempts to satisfy the defendant-focused 'minimum
contacts' inquiry by demonstrating contacts between the plaintiff (or third
parties) and the forum State").
Moreover, inasmuch as the majority's position holds that a
principal's current right to control an "agent," without more, opens the
jurisdictional door for any tortious acts in which that "agent" may
previously have engaged, it may chill investment in Nevada. If a parent
company may face liability and be haled into court based on actions that
its subsidiary-agent took at any time prior to their relationship forming,
what right-minded entity would invest in a subsidiary here? And the
impact on foreign-national investment has the potential to be more
pronounced. Article 18 of the Preliminary Draft Convention on
JurisdictionS and Foreign Judgments in Civil and Commercial Matters
adopted in 1999 by a Special Commission of the Hague Conference on
Private International Law provides that:
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2. [J]urisdiction shall not be exercised by the
courts of a Contracting State on the basis solely of
one or more of the following[:]
e) the carrying on of commercial or other activities
by the defendant in that State, except where the
dispute is directly related to those activities.
But the majority's approach allows an exercise of jurisdiction over a
defendant based solely on its commercial activity, namely its
establishment of an "agency" relationship, with a company subject to
specific jurisdiction in this state, whether or not that commercial activity
relates to the dispute in question. Thus, separate and apart from
contradicting well-established domestic law, the majority's apparent
approach to jurisdiction is also the type of "[o]verly aggressive
jurisdictional assertion[ ] that [is] incompatible with prevailing notions in
other nations." Friedrich K. Juenger, The American Law of General
Jurisdiction, 2001 U. Chi. Legal F. 141, 166 (2001).
In sum, I join in the outcome only—neither general nor
specific jurisdiction may lie over Viega GmbH and Viega International. To
the extent the majority has said more, it has said too much.
geelei.t J.
Pickering
C.J.
Gibbons
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