MAX DAETWYLER CORP., A New York Corporation v. R. MEYER, A West German Corporation. Appeal of Rolf MEYER.
No. 84-1024.
United States Court of Appeals, Third Circuit.
Argued Nov. 1, 1984. Decided May 22, 1985. As Amended June 18, 1985.
Rehearing and Rehearing In Banc Denied June 17, 1985.
762 F.2d 290
Thus, it is clear that a motion to extend the time must be filed no later than thirty days after the expiration of the original appeal period before a court of appeals can exercise jurisdiction over the appeal. Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983) (en banc), cert. denied, --- U.S. ---, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984); Campbell v. White, 721 F.2d 644 (8th Cir.1983) (notice of appeal received on thirty-second day after entry of judgment could not be considered as a motion for extension of time to appeal); Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983); Wyzik v. The Employee Benefit Plan of Crane Co., supra. Here, the plaintiffs did not move in the district court for an extension of time until August 3, 1984, more than five months after the order granting summary judgment. As the district court observed, the appellants have engaged in multiple violations of Rule 4. They failed to file a timely notice of appeal with this circuit and failed to act timely to cure the jurisdictional defect after having been apprised of it by the clerk of this court in ample time to comply. Finally, they delayed more than three months after the court‘s dismissal of the appeal in filing their remedial motion in the district court.
We regret that the dilatoriness of counsel for the appellants renders it impossible for us to afford them any relief, for neither the notice of appeal nor the Rule 4(a)(5) remedial motion were filed within the prescribed time constraints. The district court correctly denied the motion to validate the previous filing of the notice of appeal or alternatively for an extension of time to file a notice of appeal.
Accordingly, the order of the district court denying the motion will be affirmed and the clerk of this court is also directed to send a copy of this opinion directly to the plaintiff guardian ad litem.
Manny D. Pokotilow (Argued), Caesar, Rivise, Bernstein & Cohen, Ltd., Philadelphia, Pa., for appellee.
Before GARTH and SLOVITER, Circuit Judges, and BARRY, District Judge.*
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal comes to us as a certified question pursuant to
We hold that in the absence of a governing federal statute providing for nationwide service of process, in personam jurisdiction may not rest upon an alien‘s aggregated national contacts. We also hold that personal jurisdiction in Pennsylvania may not be obtained under the Pennsylvania long-arm statute,
I.
Max Daetwyler Corporation is a New York corporation that manufactures and sells doctor blades. Doctor blades are devices with reduced thickness edges used to wipe excess ink from the printing surfaces of a rotogravure printing form. Daetwyler commenced this patent infringement action in the Eastern District of Pennsylvania against Rolf Meyer, a West German citizen doing business as a sole proprietor. Meyer manufactures and sells reduced thickness edge doctor blades.
The manufacture of Meyer blades takes
Meyer initially moved to dismiss this action for lack of in personam jurisdiction. Meyer contended that he had never been to Pennsylvania, had no affiliating contacts with Pennsylvania, and had never done business in Pennsylvania. Daetwyler argued that jurisdiction over Meyer was properly asserted on the basis of both the “transacting business” provision of the Pennsylvania long arm statute,
Upon motion by Meyer, the district court certified the question of in personam jurisdiction for appeal to this court. See Max Daetwyler Corp. v. R. Meyer, 575 F.Supp. 280 (E.D.Pa.1983). We, in turn, granted Meyer‘s petition for leave to appeal pursuant to
II.
The issue before this court is whether, in the enforcement of claims arising under federal law, a federal court is bound to
The central concern of a jurisdictional inquiry is the relationship among the defendant, the forum, and the litigation. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Shaffer v. Heitner, 433 U.S. 186, 209, 97 S.Ct. 2569, 2582, 53 L.Ed.2d 683 (1977). Because personal jurisdiction necessarily addresses both the power of the court to create or affect legal interests and the rules of competence whereby adjudicatory authority is asserted, it is tested against both constitutional and statutory standards. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980); Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors, 647 F.2d 200, 203 (D.C.Cir.1981); Restatement (Second) of Conflict of Laws, Ch. 3, Introductory Note at 100-03 (1971).
In general, a court, confronted with a question of the sufficiency of a defendant‘s contacts with the forum state, would look to the state‘s long-arm statute and then determine whether the exercise of jurisdiction would satisfy due process. In Pennsylvania, whose jurisdictional statute expressly incorporates the federal due process standard, the inquiry is principally one into the constitutional propriety of the exercise of jurisdiction. See Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 489 (3d Cir.1985). While normally we consider constitutional issues only after considering statutory arguments, see Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974), we are here presented with an issue where statutory and constitutional considerations are intertwined. Indeed, because of the nature of the national contacts theory, which seeks to redefine the area of minimum contacts sufficient to satisfy due process and hence to provide a federal test of amenability to suit, a greater importance attaches to the due process inquiry at the very outset.
A.
Because this action arises under the patent laws, the due process clause of the fifth amendment guides the constitutional branch of the jurisdictional inquiry. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 283 (3d Cir.1981). The fifth amendment has been construed to impose a general fairness test incorporating International Shoe‘s requirement that “certain minimum contacts” exist between the nonresident defendant and the forum “such that 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, 158, 90 L.Ed. 95 (1945); see also Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1143 (7th Cir.1975); Fraley v. Chesapeake & Ohio Railway, 397 F.2d 1, 4 (3d Cir.1968).
In the present case, it is the situs of the requisite minimum contacts that is at issue. Daetwyler argues that because a federal question is raised, a national contacts theory should inform the exercise of the court‘s jurisdiction. Under the national contacts theory, the proper inquiry in determining personal jurisdiction in a case involving federal rights is one directed to the totality of a defendant‘s contacts throughout the United States. See Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F.Supp. 381, 390 (S.D.Ohio 1967) (“the appropriate inquiry to be made in a federal court where the suit is based upon a federally created right is whether the defendant has certain minimal contacts with the United States....“); see also First Flight Co. v. National Carloading Corp., 209 F.Supp. 730, 736 (E.D.Tenn. 1962) (“One fundamental principle of the Anglo-American law of jurisdiction is that a sovereignty has personal jurisdiction over any defendant within its territorial limits, and that it may exercise that jurisdiction by any of its courts able to obtain service upon the defendant.“) The hallmark of the theory is that “it is not the territory in which a
To aggregate the national contacts of an alien defendant in order to obtain personal jurisdiction may be neither unfair nor unreasonable when assessed by fifth amendment standards.3 Although the minimum contacts test established by International Shoe is itself a fairness inquiry, the scope of that inquiry necessarily acknowledges that the constitutionality of a state‘s assertion of in personam jurisdiction reflects territorial limitations on the power of an individual state.4 Those strictures of fourteenth amendment due process analysis which attempt to prevent encroachment by one state upon the sovereignty of another do not apply with equal force to the adjudication of a federal claim in a federal court.
See Hanson v. Denckla, 357 U.S. 235, 257, 78 S.Ct. 1228, 1241, 2 L.Ed.2d 1283 (1958) (Restrictions on state jurisdiction “are more than a guarantee of immunity for inconvenience or distant litigation. They are a consequence of territorial limitations on the power of the respective States.“) Nor, unless state boundaries are themselves deemed to correspond to areas of fundamental fairness, should an alien defendant‘s preference for a particular state as a more or less convenient forum generally rise to the level of a constitutional objection.5
In the instant case, Meyer employs Korn as a distributor for his manufactured blades. Shipments of Meyer blades are also made periodically to Uddeholm Corporation (a Delaware corporation with warehouses in Cleveland), which in turn advertises and solicits sales for generic doctor blades. The district court found these contacts sufficient to yield nationwide personal jurisdiction where the claim asserted arises under federal law.
Yet, even if the relevant area in delineating contacts were the United States as a
The line of cases from International Shoe to World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) mandates that, in assessing the sufficiency of Meyer‘s contacts, this court examine both the extent to which Meyer availed himself of the privileges of American law and the extent to which he could reasonably anticipate being involved in litigation in the United States. See Kulko v. California Superior Court, 436 U.S. 84, 97-98, 98 S.Ct. 1690, 1699-1700, 56 L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683 (1977); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). Although the assertion of jurisdiction might well be justified on the ground that only then could the substantive policies of the patent laws be given effect, we believe an inquiry into affiliating circumstances, even if national in scope, is nonetheless necessary. Otherwise, a plaintiff‘s unilateral activity might suffice to establish personal jurisdiction over an alien defendant.
The presence of Meyer‘s blades in the United States is neither fortuitous nor the result of a single transaction. Rather, Meyer, by means of Korn and possibly Uddeholm, has attempted to serve indirectly the domestic market for his product.6
Although we do not decide the issue, we can appreciate the argument that a federal statute, prescribing nationwide personal jurisdiction on the basis of a defendant‘s aggregated national contacts, might itself be constitutional. We are, however, unaware of any federal statute which presently authorizes district courts to found personal jurisdiction upon such aggregated contacts.
B.
In the absence of a federal statute authorizing nationwide service of process, federal courts are referred to the statutes or rules of the states in which they sit. Rule 4(e) of the Federal Rules of Civil Procedure provides in pertinent part:
Whenever a statute or rule of court of the state in which the district court is held provides (1) for the service of a summons, or a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the state, ... service may ... be made under the circumstances and in the manner prescribed in the statute or rule.
When a federal question case arises under a federal statute that is silent as to service of process,
We have recognized in the past that use of a state standard may produce anomalous results when applied to the litigation of a federal claim. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir.1981). In enacting a jurisdictional statute, a state legislature is generally limited by the due process constraints of the fourteenth amendment.
Although the uniform administration of federal law might be enhanced were Congress to establish a general federal question competence statute, in the absence of such legislation, we are required to follow the incorporative provisions of
This court is not the first to confront the national contacts theory. Although other
Even those few courts which have accepted the national contacts theory have ultimately grounded jurisdiction upon satisfaction of a state long-arm statute. See Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir.1975) (in patent infringement action against German defendant, jurisdiction found under Illinois long-arm statute); Centronics Data Computer Corp. v. Mannesmann, A.G., 432 F.Supp. 659, 664 (D.N.H.1977) (jurisdiction over German defendant in action alleging conspiracy to violate the antitrust laws based partly on New Hampshire long-arm statute); Engineered Sports Products v. Brunswick Corp., 362 F.Supp. 722, 728 (D.Utah, 1973) (in patent infringement claim against European defendants, court finds jurisdiction under Utah long-arm statute); cf. Holt v. Klosters Rederi A/S, 355 F.Supp. 354 (W.D.Mich.1973) (in action under Death on High Seas Act, jurisdiction found on basis of aggregate contacts, although case transferred to Florida where foreign defendant had multiple contacts); but see Cryomedics, Inc. v. Spembly, Ltd., 397 F.Supp. 287, 288, 290-92 (D.Conn.1975) (patent infringement action in which district court held that all of British defendant‘s American activities could be aggregated to establish in personam jurisdiction in Connecticut because, in part, state long-arm statute had been interpreted by state courts to extend to the limits of due process).
Because, in the absence of a governing federal statute, we have found no authority for exercising personal jurisdiction over Meyer on the basis of his contacts with states other than Pennsylvania, we reject the national contacts theory on which the district court predicated its jurisdiction. We conclude that in the absence of some provision within the patent laws authorizing nationwide service of process, the district court‘s power to exercise in personam jurisdiction is limited by
III.
It remains to be decided whether personal jurisdiction over Meyer may be obtained under the Pennsylvania long-arm statute,
Meyer‘s independent American distributor, Henry P. Korn Associates, Inc., has sold no Meyer products in Pennsylvania. See Deposition of Henry P. Korn, App. at 69b. Nor does Meyer himself have any direct contacts with the state. Daetwyler, however, contends that Uddeholm also acts as a distributor for Meyer products and that Uddeholm has both advertised and sold Meyer blades within the state. Although Uddeholm‘s status as a distributor remains in dispute, record evidence demonstrates that during 1981 and 1982, Uddeholm shipped Meyer blades to three customers in Pennsylvania. See Deposition of Thomas W. Knudsen, App. at 88b. These shipments were made from Uddeholm‘s warehouse in Cleveland, and the blades were sold as generic Uddeholm products. Uddeholm also placed advertisements for Uddeholm doctor blades, among which Meyer products, although unnamed, might be included, in several trade publications. See Deposition of Thomas W. Knudsen, App. at 101b.
It is axiomatic that the issue of minimum contacts turns on the specific facts of each case, and that the existence or absence of personal jurisdiction depends upon an assessment of the quality and nature of a defendant‘s activity. See Hanson v. Denckla, supra. To find that jurisdiction over Meyer exists, we must be satisfied that not only do the facts of this case satisfy the literal terms of the Pennsylva-
nia statute, but also that sufficient affiliating circumstances, Meyer‘s contacts with the forum, exist to meet the demands of due process. We are not persuaded that the occasional sales of Meyer products by Uddeholm satisfy the “indirect shipment” language of the Pennsylvania statute. Even if we were, however, it is doubtful whether such sales may be deemed acts of purposeful affiliation by Meyer adequate to satisfy due process.
To support jurisdiction Daetwyler, in essence, argues for an expansive application of the “stream of commerce” theory. Under this theory, as construed by Daetwyler, jurisdiction exists because Meyer, through Uddeholm, participated in a distributive chain which might reasonably anticipate sales of Meyer products in major industrial markets, which should include Pennsylvania. Although this argument might have some force were national contacts a cognizable jurisdictional base, a theory which we have rejected, it is unpersuasive when applied to Meyer‘s requisite contacts with Pennsylvania. This is particularly so in light of World-Wide Volkswagen‘s pronouncement that the mere likelihood that a product will enter the forum state cannot afford a constitutionally adequate contact.11 444 U.S. at 297, 100 S.Ct. at 567.
We note that the stream of commerce theory evolved to sustain jurisdiction in products liability cases in which the product had traveled through an extensive chain of distribution before reaching the ultimate consumer. See DeJames v. Mag-
A review of the “stream of commerce” cases indicates that the manufacturers involved had made deliberate decisions to market their products in the forum state. See Novinger v. E.I. DuPont de Nemours & Co., Inc., 89 F.R.D. 588 (M.D.Pa.1981) (exercise of personal jurisdiction over third-party defendant, German manufacturer of automobile repair products, did not offend due process where significant number of
products sold to one dealership in Pennsylvania); Hicks v. Kawasaki Heavy Industries, 452 F.Supp. 130 (M.D.Pa.1978) (jurisdiction existed over manufacturer of motorcycles sold in Japan to American distributor and resold at retail by 55 dealerships in Pennsylvania); Keene v. Multicore Solders Ltd., 379 F.Supp. 1279 (E.D.Pa.1974) (jurisdiction found over British corporation which had made series of indirect shipments of its product into Pennsylvania); Gorso v. Bell Equipment Corp., 376 F.Supp. 1027 (W.D.Pa.1974) (jurisdiction sustained where French crane manufacturer sold crane indirectly through distributor and thereafter delivered spare parts in forum state); Saccamani v. Robert Reiser and Co., Inc., 348 F.Supp. 514 (W.D.Pa. 1972) (German manufacturer, who sold numerous meat choppers in Pennsylvania by means of a distributor, held subject to jurisdiction); cf. Benn v. Linden Crane Co., 326 F.Supp. 995 (E.D.Pa.1971) (jurisdiction found over Swedish crane manufacturer whose product sold through distribu-
The dissent relies upon Horne v. Adolph Coors Co., 684 F.2d 255, 260 (3d Cir.1982), Honeywell, Inc. v. Metz Apparatewerke, supra, and Engineered Sports Products v. Brunswick Corp., supra, for the proposition that tortious injury may occur wherever the infringing products are sold. Apart from the fact that such a far-ranging theory, if carried to its logical extreme, might well result in the very “national contacts” theory which we have unanimously rejected, these cases are clearly distinguishable from the case sub judice.
In each cited case, not only were numerous sales made within the respective forum states, but also in personam jurisdiction was exercised to protect the intangible property interests of residents of the forum state. Here, as previously noted, there is no showing that Daetwyler‘s possible harm is uniquely located within Pennsylvania. Nor can Pennsylvania be said to have an interest in protecting a resident individual or corporation equivalent to the forum interests recognized in Horne, Honeywell, or Engineered Sports.
Our attention has been called to Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981). In Kenny, the Supreme Court of Pennsylvania suggested that the “purposeful participation by the seller [of a product] in a continuous distributive chain” might meet the minimum contacts requirement. Such participation, however, cannot itself yield jurisdiction in the absence of some indicia of purposeful affiliation with the forum state. In the present case, Meyer‘s contacts with Pennsylvania are insufficient to enable us to conclude that Meyer either attempted to obtain any benefit from the state or could reasonably expect to be haled into court there. To hold that Uddeholm‘s intermittent sales of Meyer blades evidences continuous distributive activity, capable and certain of repetition, is to allow the mere possibility of future contact to support jurisdiction. We do not believe such hypothetical contacts can ground jurisdiction. Nor can Uddeholm‘s occasional advertisements of its generic products be deemed such a sustained promotional campaign, directed to residents of Pennsylvania, that jurisdiction over Meyer may be obtained thereby. See Jacobs v. Lakewood Aircraft Service Inc., 493 F.Supp. 46 (E.D.Pa.1980); Hart v. McCollum, 249 Pa.Super. 267, 376 A.2d 644 (1977).
On the record before us, we find Meyer lacks sufficient minimum contacts with Pennsylvania to sustain the exercise of personal jurisdiction. That part of the district court opinion, holding jurisdiction cannot be found under the Pennsylvania statute, will therefore be affirmed.
IV.
In summary, we hold that in the absence of a governing federal statute providing for nationwide service of process, in personam jurisdiction may not rest upon an alien defendant‘s aggregated contacts with the United States. Meyer also lacks the requisite minimum contacts with Pennsylvania to support jurisdiction.
Accordingly, we will affirm so much of the district court‘s order dated April 13, 1983 as holds Meyer is not amenable to suit under the Pennsylvania long arm statute. We will reverse so much of that order as retains jurisdiction over Meyer based on national contacts and we will direct that the district court enter an order dismissing Daetwyler‘s action.
SLOVITER, Circuit Judge, dissenting.
I.
I concur in the majority‘s conclusion reached in Part II that the district court erred in asserting jurisdiction on the basis of Meyer‘s contacts with the United States as a whole. I am unable to join Part II of the majority‘s opinion, however, because, in my view, it fails to properly state and apply settled principles of personal jurisdiction. I dissent from Part III of the opinion because it reflects too narrow a view of the scope of personal jurisdiction. Instead of
II.
While the majority gives lip service to the steadfast principle of judicial procedure that we reach the constitutional issues only after exhausting the statutory alternatives, Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), it fails to apply that principle. Plaintiff sought to predicate jurisdiction on either of two bases, first, the “national contacts” doctrine accepted by the district court, which is essentially a federal basis for jurisdiction, and second, the application of Pennsylvania law. In its discussion of the national contacts theory, I see no reason for the majority‘s failure to follow the proper order of analysis and consider the statutory issue before reaching the constitutional issue. The majority‘s explanation that it is free to reverse the inquiry because the Pennsylvania statute incorporates the federal due process standard, see Majority typescript opinion at 8, is unconvincing because Pennsylvania law is irrelevant to the national contacts theory. Thus I cannot join Part II of the majority opinion because it fails to address first whether there is statutory authority for service of process and personal jurisdiction, see, e.g., Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 489 (3d Cir.1985), and instead engages in an unnecessary discussion of due process.
I agree, however, with the majority‘s conclusion that we cannot sustain jurisdiction over Meyer on the theory of national contacts adopted by the district court. The district court failed to consider whether there was any federal statutory authority for nationwide service of process. Since there is no such authority in a suit for patent infringement, we need not decide whether it would be constitutional to assert personal jurisdiction over an alien defendant solely on the basis of the alien‘s national contacts. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 416-18 (9th Cir.1977).
In DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 286 n. 3 (3d Cir.), cert. denied, 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981), we accepted for purposes of argument that “if service can be made by wholly federal means,” aggregate contacts with the United States might be considered. There we found that the suggested “wholly federal means” of service, a treaty, could not support the service of process. Here, no “wholly federal means” is even suggested. Since the absence of such authorization is dispositive of the application of any national contacts theory in this case, I see no reason why the majority proceeds with its discussion of the constitutional basis for such a theory.
Furthermore, I find certain statements obscure and various parts of the discussion confusing. For example, though the majority disclaims deciding whether there are enough contacts here to satisfy due process under the Fifth Amendment, it nonetheless hints that there are. However, a recent scholarly work suggests that there may indeed be constitutional limits imposed by the Due Process Clause of the Fifth Amendment to unrestricted nationwide personal jurisdiction. See Fullerton, Constitutional Limits on Nationwide Personal Jurisdiction in the Federal Courts, 79 Nw.U.L.Rev. 1 (1984). I believe that we would do better from a jurisprudential standpoint to decide the case before us, relying on the absence of a federal statute authorizing service of process in this situation.
III.
Because there is no statute of the United States prescribing the manner of service, we are remitted under
Initially, I note that this issue goes beyond that which the district court certified under
Thus I turn, as did the majority, to the remaining issue of whether jurisdiction can be asserted over Meyer under the Pennsylvania long arm statute. Significantly, under that statute jurisdiction “may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.”
The majority holds that the provision of the Pennsylvania long-arm statute authorizing jurisdiction over nonresidents who ship merchandise, albeit indirectly, into Pennsylvania,
Pennsylvania‘s long-arm statute extends the state‘s jurisdiction to its constitutional limit. Koenig v. International Bhd. of Boilermakers, 284 Pa.Super. 558, 567, 426 A.2d 635, 639 (1980). In such a situation, we may proceed directly with the due process inquiry. Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1058 (3d Cir.1982). I believe the majority erroneously concludes on the basis of the record before us that Meyer‘s contacts are constitutionally insufficient. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), the Supreme Court reaffirmed the already well-established principle that a state may assert personal jurisdiction over a defendant “that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” The majority opinion distinguishes the present case from a series of “stream of commerce” cases primarily on the grounds that Meyer made no “deliberate decision[] to market” his doctor blades in Pennsylvania. Typescript Opinion at 23-24. It also suggests that Meyer had no knowledge or anticipation that his products would be used in Pennsylvania.
Since the district court did not pursue its factual inquiry, I am uncertain on what basis an appellate panel can decide whether or not Meyer had the requisite “expectation” that the product he purposefully marketed in the United States would be pur-
Finally, I find it surprising that the district court did not consider whether jurisdiction could be asserted on the basis that Meyer had allegedly caused tortious injury in the state. Since the underlying suit is one for the tort of patent infringement, and the tortious injury may occur wherever the infringing products are sold, see Horne v. Adolph Coors Co., 684 F.2d 255, 260 (3d Cir.1982); Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137 (7th Cir.1975), there may be some plausibility to this theory of jurisdiction pressed by plaintiff. In a similar patent infringement case against an alien, jurisdiction was sustained under the provision of Utah law authorizing out-of-state service upon parties who cause “any injury within this state whether tortious or by breach of warranty.” See Engineered Sports Products v. Brunswick Corp., 362 F.Supp. 722, 725-26 (D.Utah 1973). The Pennsylvania statute is similar, providing for jurisdiction over someone “[c]ausing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth,”
Since either the “transacting business” rationale or the “tortious injury” rationale may offer sufficient basis for finding jurisdiction, we should not pretermit the district court‘s full consideration. Therefore, I would remand with instructions that the district court make a definitive ruling on whether defendant is subject to jurisdiction based on the Pennsylvania long-arm statute.
Notes
§ 5322. Bases of personal jurisdiction over persons outside this Commonwealth
(a) General rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(ii) The doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.
(iii) The shipping of merchandise directly or indirectly into or through this Commonwealth.
(iv) The engaging in any business or profession within this Commonwealth, whether or not such business requires license or approval by any government unit of this Commonwealth.
(v) The ownership, use or possession of any real property situate within this Commonwealth.
Those few courts which have adopted the national contacts theory have relied upon federal transfer provisions to reduce any inconvenience that results from an alien defendant‘s broadened susceptibility to suit. See, e.g., Holt v. Klosters Rederi A/S, 355 F.Supp. 354 (W.D. Mich.1973); cf. Cryomedics, Inc. v. Spembly, Ltd., 397 F.Supp. 287, 290 (D.Conn.1975) (“If the defendant‘s contacts with the United States are sufficient to satisfy the fairness standards of the Fifth Amendment ... then the only limitation on place of trial would be the doctrine of forum non conveniens.“)
The Volkswagen Court, however, made it apparent that fairness requires something more; individuals should be given fair notice about which activities would make them amenable to suit in a state forum. The Court was concerned that if foreseeability alone were the criterion, sellers of goods would confront widened bases of personal jurisdiction. See 444 U.S. at 296, 100 S.Ct. at 566 (“Every seller of chattels would in effect appoint the chattel his agent for service of process.“) By extrapolation, in the present context, that foreseeability which is of constitutional significance is not the mere likelihood that a product will enter the United States, but rather that Meyer, by shipping his product to various areas of this nation, should reasonably anticipate being haled into court in Pennsylvania, despite the insufficiency of his contacts with that particular forum.
When service is made under rule 4(e) on a person not an inhabitant of or found within the state, it is unclear whether state or federal law governs amenability. It has been held that the phrase “under the circumstances,” which was inserted in Rule 4(e) in 1963 regarding service under state statutes, concerns amenability to suit as well as the other circumstances relating to process and thus provides some specific evidence that the state test should control when service is made under Rule 4(e). This view seems particularly appropriate when a state statute relating to quasi-in-rem jurisdiction is used since the Advisory Committee Notes to the 1963 amendment seem to indicate a clear intent to conform to state practice in that context. It also should be pointed out that the word “circumstances” does not refer to the nature of the claim but rather to the nature of the acts giving rise to the claim. Thus, service in the manner provided by state law may be made under Rule 4(e) even in cases exclusively within the federal question, rather than the diversity, jurisdiction of the federal courts.
On balance, then, it would seem that state law always should govern amenability when a state statute is used pursuant to Rule 4(e). Although the opposite result has some appeal in that it permits effectuation of federal interest in a broader range of suits, it is inconsistent with the apparent intent of the draftsmen of Rule 4(e) to use state provisions for service in order to permit the federal courts in a state to hear those cases that could be brought in the state‘s own courts when a basis for asserting federal subject matter jurisdiction exists. 4 C. Wright & A. Miller, Federal Practice & Procedure § 1075 at 312-13 (1969 & Supp.1983).
Although it is arguable that those liberty interests which the fourteenth amendment protects against encroachment through an overbroad assertion of personal jurisdiction, see Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03 n. 10 (1982), may differ in the case of an alien defendant, the Pennsylvania statute by its terms contemplates that personal jurisdiction shall be based solely upon contacts with the state. The Pennsylvania legislature thus obviously confined itself to the due process restrictions of the fourteenth amendment. Under
Where, as here, plaintiff is also a multistate actor and where, unlike a products liability case, there is no showing of particularly localized harm, it is questionable whether the same tolerance for broad jurisdiction is reasonable. Presumably, Daetwyler would suffer no undue inconvenience if required to seek a forum in which Meyer is traditionally amenable to suit without resort to aggregated national contacts.
The dissent suggests that characterizing patent infringement as a tort may provide a basis for asserting personal jurisdiction over Meyer.