Lead Opinion
Barbara Bauman and 22 other Argentinian residents filed a lawsuit under the Alien Tort Claims Act against Daimler-Chrysler AG for human rights violations allegedly committed by Mercedes Benz Argentina, its subsidiary, in Argentina during the 1970s military regime. DaimlerChrysler AG filed a successful Rule 12(b)(2) motion, the lawsuit was dismissed for lack of personal jurisdiction, and this appeal ensued. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellants are 23 Argentinian citizens and residents
DCAG is a German stock company with its principal seat in Stuttgart, Germany. Mercedes Benz USA, LLC (“MBUSA”) is a Delaware limited liability company with its principal place of business in New Jersey. MBUSA is a wholly-owned subsidiary of the DaimlerChrysler North America Holding Corporation, a holding company, which, in turn, is a subsidiary of DCAG. MBUSA has two offices in California, and it is undisputed that MBUSA is subject to general jurisdiction in the state.
DCAG manufactures Mercedes Benz motor vehicles and related component parts. MBUSA is not involved in the design or production of the vehicles. Rather, MBUSA is responsible for the marketing and distribution of the vehicles in California, in addition to providing service and sales support. DCAG sells its vehicles, manufactured in Germany, to MBUSA in Germany, where title passes.
Between 1952 and 1957, an independent distributor named Max Hoffman was the sole distributor of Mercedes Benz vehicles in the United States. In 1958, Hoffman was replaced by an indеpendent subsidiary of the Studebaker-Packard Corporation. In 1964, that company went out of business, and distribution was subsequently undertaken by the predecessor-in-interest to MBUSA.
According to the Vice-President of DCAG, DCAG could not distribute vehicles in California without revising its business model, employing a considerable number of individuals, making massive investments in new facilities, and incurring significant tax exposure. DCAG also presented evidence that the most profitable Toyota distributor in the United States, Southeast Toyota Distributors, is a wholly independent, nonsubsidiary distributor.
The DCAG-MBUSA relationship is governed by a General Distributor Agreement (“the Agreement”). Under the Agreement, both parties agree upon objectives to be reached by MBUSA prior to each Sales Period. Either company may terminate the Agreement for good cause and with notice to the other party. In the event of termination, all amounts owed by either party would bе immediately due, and DCAG would be required to repurchase all vehicles and parts.
DCAG has no control over the product’s ultimate destination within the United States. Until 2001, MBUSA independently decided against buying DCAG G-Class vehicles in California, and those automobiles were therefore sold to an independent and unrelated company.
Upon request by DCAG, MBUSA must provide all information relevant to the financial condition, management, ownership, business practices, and corporate reputation of authorized resellers, as well as copies of all relevant agreements, its comprehensive advertising and marketing plan, and its balance sheets.
MBUSA must also comply with the standards designated by DCAG as binding, although any change requires one year’s notice. Marketing strategy and advertising must be consistent with applicable standards, brand representation, and DCAG directives, standards, and processes.
DCAG mаy reject proposed appointments of Authorized Resellers, must consent before MBUSA management positions can be combined, and must approve the replacement of key personnel. Furthermore, MBUSA must comply with DCAG instructions to modify or alter any
On November 22, 2005, the District Court issued an order tentatively granting DCAG’s Motion. The court found that (1) DCAG did not have continuous and systematic contacts via the contacts of MBUSA under agency jurisdiction; and (2) the exercise of jurisdiction would be unreasonable, considering (a) the extent of DCAG’s purposeful interjection, (b) the burden on DCAG, (e) conflicts with the sovereignty of Argentina and Germany, (d) California’s interest in adjudicating the dispute, (e) the availability of alternative fora, (f) efficient judicial resolution, and (g) the need to give convenient and effective relief to the plaintiffs.
The court’s ruling, however, was tentative and it ordered limited jurisdictional discovery on: (1) whether an agency relationship existed between DCAG and MBUSA, and (2) the ability of the appellants to pursue their claims in Germany or Argentina. In its Supplemental Opposition to the Motion, after discovery, appellants addressed the agency relationship and alternative fora as requested. They also argued that jurisdiction should be conferred upon DCAG because of its contacts with the United States as a whole, pursuant to Fed.R.Civ.P. 4(k)(2), and requested, in the alternative, that the District Court transfer the case to Michigan if it found that it did not have personal jurisdiction over DCAG.
On February 12, 2007, the court concluded that its earlier ruling was correct and grantеd the motion to dismiss. In its final order, it found that (1) MBUSA was not DCAG’s agent for the purpose of conferring general jurisdiction, and (2) both Germany and Argentina provided an adequate forum for appellants’ claims. The court did not consider the 4(k)(2) and change of venue arguments because both exceeded the scope of its supplemental briefing order. The appellants timely appealed, asserting that the District Court erred in finding that it lacked jurisdiction over DCAG, and alleging various procedural defects in the lower court’s ruling.
JURISDICTION
The parties dispute whether there is subject matter jurisdiction over appellants’ claim pursuant to the Alien Tort Claims Act and the Torture Victims Protection Act. 28 U.S.C. § 1350. The District Court held that it would resolve the question of personal jurisdiction first. This exercise of discretion was proper. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
STANDARD OF REVIEW
This court reviews a dismissal for lack of personal jurisdiction de novo. Butcher’s Union, Local No. 498 v. SDC Inv., Inc.,
“It is the plaintiffs burden to establish the court’s personal jurisdiction over a defendant.” Doe v. Unocal Corp.,
DISCUSSION
“Personal jurisdiction over a nonresident defendant is tested by a two-part analysis.” Chan v. Soc’y Expeditions, Inc.,
Due process requires that a nonresident defendant have certain minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington,
A. AGENCY JURISDICTION
Appellants argue that the continuous and systematic contacts of MBUSA, a subsidiary, should be attributed to DCAG, its parent, because MBUSA was its agent for purрoses of personal jurisdiction.
“The existence of a relationship between a parent company and its subsidiaries[, however,] is not sufficient to establish personal jurisdiction over the parent on the basis of the subsidiaries’ minimum contacts with the forum.” Unocal,
1. AGENCY DOCTRINE
In Unocal, we described our agency doctrine, by which the contacts of a subsidiary may be imputed to the parent. Id. at 928-31. “To satisfy the agency test, the plaintiff must make a prima facie showing that the subsidiary represents the parent corporation by performing services ‘sufficiently important to the [parent] corporation that if it did not have a representative to perform them, the [parent] ... would undertake to perform substantially similar services.’ ” Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd.,
The Unocal “court distinguished an agency relationship between a parent and its subsidiary from that of a holding company and its subsidiary, explaining that in the case of a holding company the parent could simply hold another type of subsidiary.”
Tо that end, “[appropriate parental involvement includes: monitoring of the subsidiary’s performance, supervision of the subsidiary’s finance and capital budget decisions, and articulation of general policies and procedures.” Unocal,
& THE ISSUE OF CONTROL
Although appellants later conceded that pervasive control is also necessary to confer agency jurisdiction, the parties initially disputed this issue. This court’s decision in Unocal, read in isolation, has given rise to some confusion. The beginning of the opinion refers to the need for control. See, e.g., id. at 926 (“An alter ego or agency relationship is typified by parental control of the subsidiary’s internal affairs or daily operations.”) (emphasis added). The opinion, however, did nоt discuss control further. See id. In Modesto City Sch. v. Riso Kagaku Corp., the District Court for the Eastern District of California found that control was not required by Unocal.
We write to clarify our law in the area of agency jurisdiction because the Modesto court misinterpreted Unocal. A determination of agency jurisdiction requires a two-step analysis. First, the parent must exert control that is so pervasive and continual that the subsidiary may be considered an agent or instrumentality of the parent, notwithstanding the maintenance of corporate formalities. Control must be over and above that to be expected as an incident of ownership. Second, the agent-subsidiary must also be sufficiently important to the parent corporation that if it did not have a representative, the parent corporation would undertake to perform substantially similar services. See Rutsky,
Secondly, under common law principles, control is the sine qua non of agency. See Restatement (Third) of Agency § 1.01 cmt. c (2006) (“A relationshiр is not one of agency within the common-law definition unless ... the principal has the right ... to control the agent’s acts.”).
Finally, other circuits considering the issue have held that the right to control is of consequence to agency jurisdiction, although the cases vary as to what precise role it plays. See, e.g., Purdue Research Found. v. Sanofi-Synthelabo, S.A.,
3. APPLICATION TO DCAG
We now turn to the facts of this ease. In determining whether or not DCAG exerts control that is so pervasive and continual that MBUSA may be considered an agent of DCAG, it is necessary to turn to the terms of the Agreement. The requirements that MBUSA provide detailed information and comply with general marketing standards are consistent with the “monitoring” and “articulation of general policies” permitted under our law. See Unocal,
Even if DCAG did exert- pervasive control, appellants have also failed to make a prima facie showing that DCAG would undertake to perform substantially similar services in the absence of MBUSA. It is true that the question is close. Although DCAG points to the costs of distribution and the accompanying tax exposure, “[w]here ... subsidiaries are created by the parent[] for tax or corporate finance purposes, there is no basis for distinguishing between the business of the parent and the business of the subsidaries.” Id. at 929. DCAG does not appear to own MBUSA solely as an investment; rather, MBUSA markets and sells cars produced by DCAG, thus “perform[ing] a function that is compatible with, and assists ... [DCAG] in the pursuit of ... [its] own business.” See Sonora,
Because there is insufficient control and because MBUSA does not serve as DCAG’s representative, the contacts of MBUSA cannot be imputed to DCAG.
B. REASONABLENESS OF JURISDICTION
“In addition to establishing the requisite contacts, the assertion of jurisdiction must be found reasonable.” Phenylpropanolamine,
C. PROCEDURAL ISSUES
1. IMPROPER CONVERSION OF DCAG’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION INTO A MOTION TO DISMISS BASED ON FORUM NON CONVE-NIENS
Appellants assert that the District Court improperly converted the defendant’s motion to dismiss for lack of personal jurisdiction into a de facto dismissal on forum non conveniens grounds because its final order discussed only the adequacy of alternative fora.
Appellants mischaracterize the underlying record. Although the final order' only discussed the agency relationship and the alternative fora, the District Court considered the other reasonableness factors in its earlier tentative ruling. Because “[a]n appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment,” Litchfield v. Spielberg,
2. REFUSAL TO CONSIDER APPELLANTS’ ARGUMENT FOR A FINDING OF PERSONAL JURISDICTION PURSUANT TO FED. R. CIV. P. 400(2) OR ITS REQUEST FOR TRANSFER TO MICHIGAN
The District Court did not address either appellants’ assertion that the court had jurisdiction over DCAG pursuant to Fed.R.Civ.P. 4(k)(2), or their request for transfer, because both exceeded the scope of the supplemental briefing order.
According to the Local Court Rules for the Northern District of California, “once a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval.” N.D. Cal. Civ. R. 7 — 3(d); see also Spacey v. Burgar,
Furthermore, if a party first raises an issue “in a motion which the district court refused to consider because it was untimely and in contravention of local rules,” and does not appeal the district court’s procedural ruling, the issue is waived. Palmer v. IRS,
When the District Court issued its tentative ruling in favor of DCAG, it requested supplemental briefing solely on the agency relationship and the adequacy of alternative fora. The 4(k)(2) argument and request for transfer were, thеrefore, in contravention of the local rules. See
CONCLUSION
For the foregoing reasons, we find that the District Court did not have personal jurisdiction over DCAG. We therefore AFFIRM the District Court’s order.
AFFIRMED.
Notes
. One appellant is a citizen of Chile, although he also resides in Argentina.
. The court also found that DCAG did not, in and of itself, have "continuous and systematic” contacts with California sufficient to confer general jurisdiction. This finding was not appealed.
Dissenting Opinion
dissenting:
The majority has formulated a stringent new test for determining whether an agency relationship exists for the purposes of establishing personal jurisdiction. Although the majority’s goal of providing some clarity to our rather muddled case law on the subject is laudable, the test it imposes goes too far, requiring a much stronger relatiоnship between parent and subsidiary than is necessary or desirable. The result is to shield foreign corporations from actions in American courts — although they have structured their affairs so as to reap vast profits from American markets — and to deprive plaintiffs, including those who allege grave human rights abuses, of access to justice. Accordingly, I dissent.
I. Minimum Contacts
A.
Under our existing precedent, if one of two tests is satisfied, we may find minimum contacts to support the exercise of personal jurisdiction over a foreign parent company by virtue of its relationship to a subsidiary that has continual operations in the forum. The first test, not directly at issue here, is the “alter ego” test. It is predicated upon a showing of control:
[T]he plaintiff must make out a prima facie case (1) that there is such unity of interest and ownership that the separate personalities of the two entities no longer exist and (2) that failure to disregard their separate identities would result in fraud or injustice. The first prong of this test has alternately been stated as requiring a showing that the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former.
Doe v. Unocal Corp.,
The agency test is satisfied by a showing that the subsidiary functions as the parent corporation’s representative in that it performs services that are sufficiently important to the foreign corporation that if it did not have a representative to perform them, the corporation’s own officials would undertake to perform substantially similar services.
Id. at 928(quoting Chan v. Society Expeditions, Inc.,
The principal focus of the agency test for purposes of personal jurisdiction, therefore, is not “control” — much less “pervаsive and continual” control, Maj. Op. at 1095-96 — but rather the relative importance of the services provided to the parent corporation. The cases that might be read to require a stronger showing of control use such language imprecisely, describing both the agency and alter ego tests without differentiating between them. See, e.g., Unocal,
To be sure, control should play some role — albeit a secondary one — in determining whether personal jurisdiction is established. This is so because control is a traditional element of agency under common law principles.
A principal’s right to control the agent is a constant across relationships of agency, but the content or specific meaning of the right varies. Thus, a person may be an agent althоugh the principal lacks the right to control the full range of the agent’s activities, how the agent uses time, or the agent’s exercise of professional judgment. A principal’s failure to exercise the right of control does not eliminate it, nor is it eliminated by physical distance between the agent and principal....
§ 1.01 cmt c (2006).
The level of control required by the majority is excessive, therefore, even for purposes of considering traditional questions of liability. But we should in any event require a less stringent showing of control for the limited purpose of establishing personal jurisdiction, for at least two reasons. First, according to the majority “control” is but one part of a two-pronged agency test for the purposes of establishing personal jurisdiction; we must also determine that the services are “sufficiently important.” See Unocal,
We must remember that here, we are establishing a test for agency in a specialized context. We are not asked to determine the contours of vicarious liability, or to hold DCAG financially liable for the actions of MBUSA. We are deciding one question, only: whether DCAG has sufficient “minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington,
In an increasingly complex and globalized economy, corporations such as DCAG reap enormous profits from the sale of their goods in the United States, achieved through the use of distributors, frequently in the form of subsidiaries. Many multinational companies organize their corporate structure and acquire subsidiaries for the sole purpose of obtaining a maximal benefit from the American market. DCAG, for instance, has earned 45% of its annual revenue from its sales in the United States. 2.4% of its total sales in 2004 were in California. Given these realities, and the continually evolving ways of doing business in an international arena, it is a mistake for the majority to formalize and rigidify our test for personal jurisdiction with an over-emphasis on control. As noted by our highly-regarded colleague from New York, Jack Weinstein, nearly three decades ago, such rigid formalism does not map well onto the realities of the business world:
[Djifferent control relationships inhere in different multinational structures, and we lose sight of the economic realities if we insist on masking these distinctions behind simplistic formulae. The kind of “day-to-day control”, to the extent such a nebulous concept can be made concrete, will vary depending on the kind of subsidiary involved. Thus, while “day-to-day control” might be required to attribute the activities of a relatively autonomous manufacturing subsidiary to its conglomerate parent, this by no means implies such a requirеment as to a wholly-owned sales and marketing subsidiary which is the conduit for the sales of a single product in the New York market.
Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd.,
Under the more flexible approach that I would employ, the degree of control that DCAG exercises over MBUSA would be more than sufficient for the purposes of establishing personal jurisdiction. The evidence adduced may, in fact, support a finding of control even under the majority’s overly stringent test. The following list details, at a minimum, the ways in
• MBUSA must comply with all DCAG “directives, standards and processes,” in its promotion and advertising, which include directives regarding type, design, and size of the signs used by MBUSA
• MBUSA must submit, at least three months prior to the commencement of each Sales Period, its comprehensive advertising and marketing plan for DCAG’s review and approval.
• MBUSA must keep DCAG informed of all marketing, advertising, and promotional activities it implements as well as the results of such activities.
• DCAG owns 100% of the capital stock of MBUSA.
• DCAG retains full ownership of “Mercedes-Benz” trademark.
• MBUSA is required to use the DCAG financial system and maintain records and operating reports based on the standards set forth by DCAG.
• MBUSA must receive approval from DCAG before entering into an agreement with any “Authorized Reseller,” and after agreement, must approve the location of “each retail sales outlet, showroom and service facility.” “DCAG may, in its sole discretion, reject any such proposed appointment.”
• MBUSA must obtain approval from DCAG to replace key personnel (including the CEO).
• DCAG provides the warranty terms for vehicles to consumers.
• MBUSA cannot make alterations to the cars without prior approval, other than alterations ordered by specific customers in connection with vehicles purchased by thоse customers.
• MBUSA can use only DCAG-supplied parts when repairing or maintaining its own vehicles.
• DCAG can compel MBUSA to engage in dealer advertising programs and parts merchandising programs.
• MBUSA must keep DCAG updated on all promotional materials it uses. MBUSA must adhere to the details of signage and marketing specifications as set out by DCAG, including the type, design, and size of MBUSA’s and Authorized Resalers’ signage.
• DCAG employees hold senior decision-making positions within the MBUSA Board of Directors.
• MBUSA must collect customer data and furnish periodic reports, upon request from DCAG.
• MBUSA works closely with DCAG to ensure regulatory compliance regarding manufacturing, sales, and legal requirements.
Ml of these provisions support the conclusion that DCAG is involved in — and has the power to exert sufficient control over-key aspects of MBUSA’s operations. If the services that MBUSA provides are “sufficiently important,” — and I turn to thаt question next — lack of more “control” than DCAG possesses here should be no bar to personal jurisdiction.
B.
This brings me to the remainder of my disagreement with the majority opinion. The evidence that DCAG has previously used independent distributors to facilitate its car sales in the United States, along with Toyota’s successful use of autonomous distributors, does not undermine the conclusion that there is an agency relationship between MBUSA and DCAG for purposes of establishing personal jurisdiction.
As an initial matter, the parties dispute whether DCAG would be able to rely successfully on the services of independent distributors to market and sell cars in the United States should it terminate its rela
More important, however, under the agency test, a subsidiary acts as an agent if the parent would undertake to perform the services itself if it had no representative at all to perform them. Unocal,
C.
The parties here agree that MBUSA’s contacts with California warrant the exercise of general jurisdiction. In other words, its “continuous corporate operations within [the] state are ... so substantial and of such a nature as to justify suit against the defendant on causes of action arising from dealings entirely distinct from those activities.” Tuazon v. R.J. Reynolds Tobacco Co.,
To any layman it would seem absurd that our courts could not obtain jurisdiction over a billion dollar multinational which is exploiting the critical New York and American markets to keep its home production going at a huge volume and profit. This perception must have a bearing on our evaluation of fairness. The law ignores the common sense of a situation at the peril of becoming irrelevant as an institution.
Bulova Watch Company,
II. Reasonableness
Because I would hold that there is ample evidence of an agency relationship between DCAG and MBUSA, such that MBUSA’s contacts with California should be imputed tо DCAG, I would move on to consider a question that the majority has not reached: whether the assertion of jurisdiction is “reasonable” in this case.
Because the plaintiffs (“Bauman”) have made the requisite showing of minimum contacts in the forum state, “[t]he burden ... shifts to the defendant to present a compelling case that jurisdiction would be unreasonable.” Sinatra v. National Enquirer, Inc.,
■ the extent of purposeful interjection; the burden on the defendant; the extent of conflict with sovereignty of the defendant’s state; the forum state’s interest*1104 in adjudicating the suit; the most efficient judicial resolution of the dispute; the convenience and effectiveness of relief for the plaintiff; and the existence of an alternative forum.
Sinatra,
First, as described at length above, DCAG has purposefully and extensively interjected itself into the California markets through its agent, MBUSA, such that general jurisdiction is warranted. This factor weighs strongly in favor of “reasonableness,” as a corporation that “has continuously and deliberately exploited the [California] market ... must reasonably anticipate being haled into court there.... ” Keeton v. Hustler Magazine, Inc.,
Second, the burden on the defendant, a large corporation, to litigate the case in California is not so weighty as to preclude jurisdiction — particularly since “modern advances in communications and transportation have significantly reduced the burden of litigating in another country.” Sinatra,
Third, we have held that the extent of the conflict with the sovereignty of the defendant’s state “is not dispositive because, if given controlling weight, it would always prevent suit against a foreign national in a United States court.” Id. (quotation omitted). While it is true that “[g]reat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field,” Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County,
Fourth, although the events at issue did not take place in California and although the plaintiffs are not California residents, the forum state does have a significant interest in adjudicating the suit. California partakes in “the shared interest of the several States in furthering fundamental substantive social policies.... ” World-Wide Volkswagen Corp. v. Woodson,
The fifth, sixth, and seventh factors are, in this case, all influenced by whether the plaintiffs would be able to litigate this suit in Germany or Argentina at all. Bauman contends that Germany does not recognize human rights suits against corporate defendants and will not allow equitable tolling. Argentinian courts, Bauman asserts, provide no means of redress against corporations that collaborated with Argentine security forces in carrying out the Dirty War, and would bar this suit on account of the statute of limitations. Most important for our purposes is whether Argentina would be an adequate forum, as Argentina — where the events at issue in this lawsuit took place — would be, all other factors being equal, the most natural location in which to litigate the case.
Bauman’s arguments that Argentina would not be a fully adequate forum — if it is a forum at all — are persuasive. Most important, a recent Supreme Court case in Argentina has concluded that human rights cases arising out of the Dirty War are subject to a two-year statute of limitations. See Larrabeiti Yanez, Anatole Alejandro v. National Government, L. 795. XLI. (ROR) L. 632. XLI. APPEAL. This suit would, for that reason, be barred— which makes Argentina unavailable as an alternate forum. See Miracle v. N.Y.P. Holdings, Inc.,
As to Germany, there is conflicting expert testimony whether equitable tolling, or an equivalent within the German legal system, would allow the suit to move forward. The answer is not clear; indeed, the district court concluded thаt “it appears that plaintiffs’ claims, which are based on events that occurred in 1976 and 1977, would not necessarily be time-barred.” Bauman v. Daimlerchrysler AG, No. C-04-00194 RMW,
Even if Argentina and Germany were, as DCAG argues, both adequate fora for redressing any alleged wrongs, the availability of an alternative forum is not the
In light of DCAG’s pervasive contacts with the forum state through its agent MBUSA, as well as the interеst of California and the federal courts in adjudicating important questions of human rights, and our substantial doubt as to the adequacy of either Germany or Argentina as an alternative forum, I would hold that on this record it is entirely reasonable and consistent with due process to exercise in personam jurisdiction over DCAG.
III.
I would not have dismissed Bauman’s claims for want of personal jurisdiction over DCAG. The majority’s overly stringent test for agency in this context erroneously allows foreign corporations that benefit tremendously from American markets to evade judicial process through creative corporate structuring. It denies the plaintiffs, out of hand, a judicial forum and the opportunity to seek redress of grievous wrongs. There is a vast disconnect between the majority’s decision today and the foundational principles of fair play and due process that underlie our personal jurisdiсtion doctrine. For these reasons, I dissent.
. Even Modesto, the district court decision that most emphatically rejects a strict requirement of control under the agency test, does not suggest otherwise. See Modesto City Schools v. Riso Kagaku Corp.,
. Admittedly, there is a lack of clarity and consistency in the previous articulations of the “sufficient importance” test. Some language in Unocal appears to require that without the particular subsidiary's services, the parent company would undertake the agent's activities itself, perhaps through the use of its own personnel. See Unocal,
. An agent need not necessarily be a subsidiary; an independent corporation or individual may be an agent under certain circumstances, as well. See, e.g., Wells Fargo at 419(“There appears to be no reason why a completely independent, in-state corporation cannot be held to have aсted as an agent for another, out-of-state corporation in performing activities giving rise to a cause of action”).
. See also Newport Components, Inc. v. NEC Home Electronics (U.S.A.), Inc.,