NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
In re IMPACT ABSORBENT TECHNOLOGIES, INC. and Loraday
Environmental Products, Ltd., Petitioner.
No. 96-3496.
United States Court of Appeals, Sixth Circuit.
Dec. 18, 1996.
On Appeal from the United States District Court for the Northern District of Ohio.
N.D.Ohio
MANDAMUS GRANTED.
Before: RYAN, SILER, and BATCHELDER, Circuit Judges.
PER CURIAM.
Petitioners, Impact Absorbent Technologies, Inc. ("Impact") and Loraday Environmental Products, Ltd. ("Loraday"), seek a writ of mandamus directing the district court to dismiss this action for lack of personal jurisdiction.1 For reasons stated herein, the writ will be granted.
I. FACTS
Impact is a California corporation which has engaged in the business of manufacturing absorbent material used in environmental spill control since 1992. It has no offices nor comparable facilities in Ohio. It has not directly transacted any business in Ohio, nor has it contracted with anyone to act on its behalf to market, distribute, or service any of its products in Ohio.
Loraday is an Ontario, Canada corporation engaged in the business of marketing and selling absorbent products used in spill control. It is not incorporated in and has not qualified to do business in Ohio. Its sole employee, Peter Lorimer, is neither a resident nor a domiciliary of Ohio.
XORB is an Ohio company which began manufacturing and selling absorbent materials in interstate commerce under the XORB mark prior to Impact's entry into the market. XORB has not sought federal registration of its trademark.
In November 1994, Loraday was contacted by one of its largest customers, Lafarge Construction Materials, Ltd. ("Lafarge Canada"), requesting spill kits and information for a conference that Lafarge Canada was holding for its district managers. After the meeting, Lafarge Canada requested that Loraday contact a district manager at its affiliate in Ohio ("Lafarge Ohio"). At the manager's request, Loraday sent him a brochure, catalogue, and price list. Lafarge Ohio ordered twenty-four spill kits, which Loraday provided F.O.B. Loraday's facility in Canada.
After XORB filed suit, Impact and Loraday moved to dismiss the action for lack of personal jurisdiction. The district court denied the motion. They now seek a writ of mandamus commanding the district court to vacate its order denying the motion to dismiss and to dismiss the complaint for lack of jurisdiction.
II. DISCUSSION
Mandamus is an extraordinary remedy which will only be granted when the petitioner shows that its right to issuance of the writ if "clear and indisputable." In re American President Lines,
(1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired.
(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first).
(3) The district court's order is clearly erroneous as a matter of law.
(4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.
(5) The district court's order raises new and important problems, or issues of law of first impression.
In re Bendectin Prod. Liab. Litigation,
(1) Whether Alternative Relief Would Be Adequate and (2) Whether Damage Would Be Correctable on Appeal
We will consider these two issues in conjunction with each other because they are so closely related. Petitioners claim that, without a writ dismissing the complaint, they will be forced to (a) refuse to answer the complaint and then seek relief from the resulting default judgment, or (b) answer the complaint and litigate the action in a distant, inconvenient forum until final judgment has been rendered. If they choose the first course of action, they will have lost the opportunity to defend on the merits in the event that this court upholds on direct appeal the district court's exercise of jurisdiction. In the second instance, even if they were to obtain relief on direct review, they will have incurred substantial expense in litigating the action in a distant forum. However, this is not the type of uncorrectable damage sufficient to merit issuance of a writ. See In re Chicago, Rock Island & Pac. Ry.,
(2) Whether the Order of the District Court Is Clearly Erroneous as a Matter of Law
In order for this factor to favor issuance of a writ of mandamus, the district court must have committed clear error in determining that it had personal jurisdiction over petitioners. If, as here, the court decides to rule on the basis of written submissions, XORB bears the burden of merely making a prima facie showing that personal jurisdiction exists. The court "must consider the pleadings and affidavits in the light most favorable to the plaintiff." Welsh v. Gibbs,
In assessing whether the district court was clearly erroneous in its assertion of personal jurisdiction over petitioners, we must apply the provisions of the Ohio Long Arm Statute, OHIO REV.CODE ANN. § 2307.382 (Baldwin 1994), as well as the Due Process Clause of the Fifth Amendment. Reynolds v. International Amateur Athletic Fed'n,
(a) Impact
The district court based its assertion of jurisdiction over Impact on subsection (A)(6) of the long arm statute, but did not address due process considerations, which are critical to any personal jurisdiction analysis. Reynolds,
(b) Loraday
The district court based its conclusion that due process was satisfied with regard to Loraday on the grounds that it sent a brochure, catalogue, and price list to Ohio, and Lafarge Ohio placed an order with Loraday. Telephone calls and letters, without an ongoing business relationship, do not rise to the level of purposeful availment contemplated by due process. Market/Media Research, Inc. v. Union-Tribune Publishing Co.,
(3) Whether the District Court's Order Is an Oft-Repeated Error or Manifests a Persistent Disregard of the Federal Rules
This factor is not relevant to the circumstances of this case.
(4) Whether the District Court's Order Raises a New or Important Problem or an Issue of Law of First Impression
If the district court's order were allowed to stand, it would subject trademark owners to jurisdiction wherever the stream of commerce leads their goods, because the district court required no minimum contacts when it subjected Impact and Loraday to personal jurisdiction.
III. CONCLUSION
Although uncorrectable damage may not result if petitioners are forced to wait for a remedy on direct appeal, the clearly erroneous nature of the district court's order calls for a more immediate remedy. Issuance of a writ is appropriate when "[t]he challenged assumption or denial of jurisdiction [is] so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine." Holub Indus. v. Wyche,
WRIT GRANTED.
Notes
Respondent, XORB Corporation ("XORB"), filed suit alleging false designation of origin, fraudulent registration of a trademark, false advertising, and unfair competition