Carol CLUNE; Paul L. Clune; Kelly M. Clune, Plaintiffs-Appellants, v. ALIMAK AB; Alimak Elevator Company; Defendants, Industrivarden Service AB, Defendant-Appellee.
No. 00-1009
United States Court of Appeals, Eighth Circuit
Dec. 1, 2000
Rehearing and Rehearing En Banc Denied Jan. 22, 2001.
233 F.3d 538
Submitted: Sept. 12, 2000.
So on the plane of literal interpretation the defendant has the better of the argument. But that is not the right plane to stay on. If the judgment is read literally, the sentence was illegal, because there is no authority in federal law for imposing a free-standing sentence of home confinement. United States v. Gilchrist, 130 F.3d 1131, 1137 (3d Cir.1997) (concurring opinion). Home confinement is authorized only as a condition of pretrial release, probation, or supervised release.
What is more, if read literally the judgment in this case would have prevented transferring supervision of the defendant to the district in which she lives during the very period in which she was confined to her home; and that would make no practical sense, since it is during that period, when she is working outside the home, that supervision is required. Had the sentencing judge in Missouri been apprised by the parties (the Department of Justice was especially remiss in failing to apprise him) of the legal and practical obstacles to his sentence, we are sure he would have done just what Judge Stiehl interpreted him to have done. That is, make the five-year maximum term of supervised release run from the date of the sentence (the defendant had already served the one day in prison) and require as a condition of supervised release that she spend the first six months in home confinement. Interpretation is a flexible tool, and if here employed rather aggressively to bring about the legally and practically sound result that Judge Stiehl lacked authority to bring about directly, we do not think it was flexed quite to the breaking point.
AFFIRMED.
Robert A. Horn, argued, Kansas City, MO (Peter T. Niosi, on the brief), for Plaintiffs-Appellants.
Thomas O. Baker, argued, Kansas City, MO (John E. Jackson III, and Todd W. Amrein, on the brief), for Defendant-Appellee.
Before WOLLMAN, Chief Judge, LAY and BRIGHT, Circuit Judges.
In February 1996, Joseph Clune was working at a construction site in Kansas City, Missouri, for his employer, J.E. Dunn, when he fell from a construction hoist through an unenclosed area on top of the work platform.1 He died as a result of the fall. The hoist was manufactured by Linden-Alimak AB, a Swedish corporation that designed and manufactured construction hoists and other lifts. Industrivarden Service AB (“Industrivarden“) is one of two successor companies of Alimak AB. Industrivarden is a shell corporation that has no employees and does not manufacture or sell equipment. For purposes of this suit, the company exists to handle the liabilities of Linden-Alimak AB/Alimak AB. Linden-Alimak AB sold the hoist F.O.B. Swedish port to Esco Corporation (“Esco“) in 1972. At the time, Esco maintained an office in Oregon and imported the hoist into the United States via Seattle, Washington.
Carol Clune, Paul Clune, and Kelly Clune (“the Clunes“), the wife and children of the decedent, brought a wrongful death suit against Industrivarden. The district court granted Industrivarden‘s motion to dismiss for lack of personal jurisdiction. On appeal, the Clunes argue that the exercise of personal jurisdiction in this case falls under the Missouri long-arm statute and comports with the Due Process Clause of the
We reverse.
A.
During the years Linden-Alimak AB/Alimak AB2 was in business, it used distributors within the United States to sell its products in the United States. From approximately 1960 to 1970, B.M. Heede (“Heede“), a Connecticut corporation, was the exclusive distributor for Linden-Alimak AB. From 1970 to 1974, the company used two distributors for its product: Oregon-based Esco sold the hoists in thirteen western states, while Heede sold the equipment in the rest of the country, including Missouri. Both distributors also sold other manufacturers’ products.3
The district court found that Industrivarden was not subject to personal jurisdiction in Missouri because the company‘s activities were not sufficiently targeted to that state. First, the court denied jurisdiction on the stream of commerce theory, finding that Linden-Alimak AB/Alimak AB did not purposefully avail itself of the privilege of conducting business in Missouri. Second, the court failed to find jurisdiction over Linden-Alimak AB/Alimak AB based on the activities of its subsidiary, Alimak, Inc. Because it did not find sufficient minimum contacts, the district court did not consider whether exercising personal jurisdiction would comport with fair play and substantial justice under the Due Process Clause.
We review a dismissal for lack of personal jurisdiction de novo. See Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998). To successfully challenge a dismissal for lack of personal jurisdiction, the plaintiff must make a prima facie showing that jurisdiction is proper. See id.
We apply a two-part test to the jurisdictional issue. First, whether the forum state‘s long-arm statute is satisfied, and second, whether the exercise of jurisdiction comports with due process. See id.
B.
The Missouri long-arm statute confers jurisdiction over nonresidents who commit tortious acts within the state. See
The Due Process Clause establishes the parameters of a state‘s power to assert personal jurisdiction over a nonresident defendant. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Due process requires that the defendant “have certain 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, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1941)).
the burden on the defendant, the interests of the forum state in adjudicating the dispute, the plaintiff‘s interest in obtaining convenient and effective relief, the interstate judicial system‘s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies.
Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 374 (8th Cir.1990) (citing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (part II.B., joined by eight Justices)). See also Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (reciting factors to consider in determining whether due process is satisfied: nature and quality of defendant‘s contacts with the forum state; quantity of contacts; relation of the cause of action to those contacts; interest of the forum state in providing a forum for its residents; and convenience of the parties).
The baseline for minimum contacts is “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, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The defendant‘s contact with the forum state must be such that he or she “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In World-Wide Volkswagen the Supreme Court recognized that
if the sale of a product of a manufacturer or distributor ... 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 if its allegedly defective merchandise has there been the source of injury to its owner or to others.
Id. In other words, personal jurisdiction may be exercised consonant with due process “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.” Id. at 297-98.
In its most recent discourse on the stream of commerce theory, the Court in Asahi debated whether a foreign manufacturer that places a product in the stream of commerce purposefully avails itself of the privilege of conducting business in a state where the product ultimately is found. Although a majority of the Asahi Court agreed with Justice O‘Connor that jurisdiction was not proper in that case, five Justices refused to adopt her articulation of a stream of commerce “plus” theory.6 See 480 U.S. at 116-22. See also Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 614 (8th Cir.1994) (“In short, Asahi stands for no more than that it is unreasonable to adjudicate third-party litigation between two foreign companies in this country absent consent by the nonresident defendant.“).
In the present case, Linden-Alimak AB/Alimak AB did more than simply set a product adrift in the international stream of commerce. The record shows Linden-Alimak AB/Alimak AB created the distribution system that brought the hoist to Missouri. In Barone, we endorsed the idea that when a seller heads a distribution network it realizes “the much greater economic benefit of multiple sales in distant forums,” which in turn “may ‘satisfy the purposeful availment test.‘” 25 F.3d at 613 (quoting Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 667 (7th Cir.1986)). Barone was an American employee who was injured by a fireworks display and brought an action against the Japanese manufacturer of the fireworks. Although the manufacturer had no office, agent, or distributor in Nebraska, did not advertise in Nebraska and did not send any of its products into Nebraska, it was subject to personal jurisdiction based on the process by which its products arrived in that state. During the relevant time period, the manufacturer used nine distributors in six states. Despite the manufacturer‘s claim that it had no actual knowledge that one of its distributors sold products in Nebraska, “such ignorance defie[d] reason and could aptly be labeled as ‘willful.‘” Id. at 613. Its strategic choice of distributors that could reach much of the country was evidence of the manufacturer‘s efforts “to place its products in the stream of commerce throughout the Midwest and other parts of the country as well.” Id. at 614. Because it was difficult to imagine that this effective distribution system was put in place by chance, the manufacturer could not plead ignorance that its products were being distributed into neighboring states. See id. at 613-14. When a foreign manufacturer reaps the benefits of a distribution network in this way, “it is only reasonable and just that it should be held accountable in the forum of the plaintiff‘s choice....” Id. at 615.
The facts alleged by the Clunes are similar to those in Vandelune. Linden-Alimak AB/Alimak AB designed its construction hoists for the United States market. The company had exclusive distribution agreements with United States distributors.7 The Swedish parent‘s logo was displayed on products that were sold in the United States. Linden-Alimak AB/Alimak AB also conducted training seminars in the United States for technicians employed by Alimak, Inc. who serviced hoists that were sold by the subsidiary. Of the 700 construction hoists that were sold in the United States by the company‘s distributors, between twenty and forty ended up in Missouri. This fact alone makes it difficult for us to characterize the hoist‘s location in Missouri as random, attenuated or fortuitous. See Burger King, 471 U.S. at 475. Additionally, the Swedish parent provided sales brochures and instruction manuals to its distributors for use in promoting and servicing its products in the United States. Members of the Swedish parent‘s board of directors also served as directors of its subsidiary. Any of these facts, taken alone, might fall short of purposeful availment, however, when taken together they show that Linden-Alimak AB/Alimak AB engaged in a series of activities that were designed to generate profits to the parent from its subsidiaries’ sales across the United States.8
We are not persuaded by Industrivarden‘s argument that it was unaware of what happened to its products after they left Swedish port. “[S]uch ignorance defies reason and could aptly be described as ‘willful.‘” Barone, 25 F.3d at 613. See also id. at 613 n. 4 (explaining how the distinction between what the defendant knew and should have known is immaterial to the personal jurisdiction analysis). If we were to conclude that despite its distribution system, Linden-Alimak AB/Alimak AB did not intend its products to flow into Missouri, we would be bound to the conclusion that the company did not intend its products to flow into any of the United States.
The facts show that Linden-Alimak AB/Alimak AB purposefully directed its products to the United States through the distribution system it set up in this country. The company knew that by virtue of this system, its construction hoists entered the Missouri and other Midwest markets. Linden-Alimak AB/Alimak AB‘s creation of the system that brought hoists to Missouri established sufficient minimum contacts with that forum to satisfy the due process standards set by the Supreme Court and followed by this circuit.
The Supreme Court has noted that “[t]he unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” See Asahi, 480 U.S. at 114 (part II.B., joined by eight Justices). As we have noted, Industrivarden is a shell corporation that has no employees or products to sell. Essentially, the company exists through its insurance company. The overwhelming majority of the evidence in this case will be found in Missouri or the surrounding area, such as the construction hoist, eyewitnesses, medical records, and documents material to the incident. As a result, Industrivarden would have to come to Missouri to investigate and gather evidence no matter where a trial were to take place. With the help of modern technology and transportation, Industrivarden easily will be able to collect any relevant documents that are in Sweden and transport them to the United States. For these reasons, any burden Industrivarden might undertake in defending itself in Missouri will be minimal.
The Clunes’ interest in obtaining convenient and effective relief is best satisfied by adjudicating this dispute in Missouri. Although they are residents of Kansas, Kansas is not a viable venue for this case and Missouri is the closest choice. In any event, Missouri is abundantly more convenient for the Clunes than if this case were to be tried in Sweden. Our decision today in no way guarantees the Clunes success in this suit. However, it likely would be impossible for this family of three who has lost their husband and father to travel abroad to seek restitution for his death.
Trying this case in Missouri federal court also satisfies the judicial system‘s interest in obtaining the most efficient resolution of this controversy. We exercise caution when subjecting a foreign corporation to jurisdiction in the United States, but are satisfied that Linden-Alimak AB/Alimak AB affirmatively took on the risk of liabilities here.
Finally, the adjudication of this dispute in Missouri ensures the fundamental social policy of safety in goods that enter our marketplace. As commercial borders are dismantled in the increasingly global marketplace, more products are available to consumers in the United States. It is essential that our laws designed to protect the health and safety of human beings not be lost in this flurry of commerce.
The judgment of dismissal by the district court is vacated and the cause is remanded for further proceedings.
BRIGHT, Circuit Judge, concurring.
I concur in the result only.
I do not agree with the stream of commerce theory of the majority. Initially the Swedish manufacturer, Linden-Alimak AB, shipped the construction hoist F.O.B. Swedish port to the Pacific Northwest in the United States. The hoist apparently came into Missouri via a contractor. The application of the stream of commerce theory would subject a foreign entity to suit in any state of the Union where the product ended up, regardless of the original destination for the article or how the particular product happened to be in a particular place in any state.
I believe, however, that the defendant through its subsidiaries was subject to jurisdiction because those subsidiaries were doing business in Missouri. Its subsidiaries, Linden-Alimak Inc. and Alimak Inc., were incorporated in the State of Connecticut. They both held certificates of authority to conduct business in the State of Missouri. They employed sales representatives to cover multi-state territories. These sales representatives sold their companies’ products in Missouri.
Courts in the Eighth Circuit have held that they can only assert personal jurisdiction over a foreign parent corporation based on the activities of its resident subsidiary when the parent corporation dominates and controls the subsidiary to the point that the two companies no longer maintain corporate formalities. See Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519 F.2d 634, 638 (8th Cir.1975). The district court in the instant case found that the Clunes have not produced any evidence to show that Industrivarden controlled, or had any influence over, its distributors’ and subsidiaries’ marketing and sales decisions. The district court also noted that the Clunes failed to show that the distributors and subsidiaries were selling in Missouri under the expectations of Industrivarden. Therefore, the district court refused to base jurisdiction over Industrivarden on the activities of its distributors and subsidiaries.
Because of the absence of evidence regarding the issue, I do not here hold that the foreign manufacturer and its subsidiaries are so tightly related that the subsidiaries are mere alter-egos of the parent. Rather, I simply refer to the relationship to support our conclusion that without the existence of its subsidiaries, Industrivarden would not be able to distribute its product in the United States. This connection between the foreign manufacturer and the resident subsidiary represents more than simply placing a product into the stream of commerce.