Brunner v. Hampson

• Decision Date: 28 February 2006
• Docket Number: No. 05-3123.,No. 05-3191.,05-3123.,05-3191.
• Citation: 441 F.3d 457
• Parties: Paul BRUNNER, Karen Brunner, and Douglas Otte, Plaintiffs-Appellants (05-3191), v. Pamela HAMPSON, Executor of the Estate of Jerry Jay Hampson, Deceased, Defendant-Appellant (05-3123), Canada North Outfitting, Inc. and Jerome Knap, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

441 F.3d 457

Paul BRUNNER, Karen Brunner, and Douglas Otte, Plaintiffs-Appellants (05-3191), v. Pamela HAMPSON, Executor of the Estate of Jerry Jay Hampson, Deceased, Defendant-Appellant (05-3123) Canada North Outfitting, Inc. and Jerome Knap, Defendants-Appellees.

No. 05-3123.

No. 05-3191.

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2005.

Decided and Filed: February 28, 2006.

ARGUED:

Mark R. Riegel, Dagger, Johnston, Miller, Ogilvie & Hampson, Lancaster, Ohio, Robert G. Palmer, Robert Gray Palmer Co., Columbus, Ohio, for Appellants. Sandra J. Anderson, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellees.

ON BRIEF:

Mark R. Riegel, Dagger, Johnston, Miller, Ogilvie & Hampson, Lancaster, Ohio, Robert G. Palmer, Robert Gray Palmer Co., Columbus, Ohio, for Appellants. Sandra J. Anderson, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellees.

Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This diversity-of-citizenship case was filed as a result of an explosion and fire in a hunting cabin in northern Canada. Paul Brunner and Douglas Otte are United States citizens who were injured in the fire. Karen Brunner is the wife of Paul Brunner. All three sued the Estate of Jerry Jay Hampson, an Ohio resident who died in the fire, as well as the Canadian corporation Canada North Outfitting, Inc. and its Canadian owner, Jerome Knap. The Hampson Estate then filed a cross-claim against the two Canadian defendants. In response to a motion for summary judgment filed by Canada North and Knap, the district court dismissed the claims against them for lack of personal jurisdiction. The district court then certified its order as a final appealable judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. All of the non-Canadians appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual circumstances

The magistrate judge's Report and Recommendation aptly summarizes the background facts, identifying the parties and the alleged tortious acts that gave rise to this diversity case:

Plaintiffs Paul and Karen Brunner are residents of Missoula, Montana. Plaintiff Douglas Otte is a resident of St. Paul, Nebraska. Defendant Pamela Hampson is a resident of Fairfield County, Ohio and is the Executrix of the Estate of Jerry Jay Hampson. Defendant Canada North is an international booking agent and outfitter providing sport hunting excursions in the Province of Nunavut, Canada. Canada North is incorporated under the laws of the Province of Ontario, Canada. Defendant Knap is the owner and sole shareholder of Canada North and is a resident of Almonte, Ontario, Canada.

In February 1999, Thomas Moore, a resident of Ohio, was contacted by Brent Sinclair, a "booking agent" located in Pincher Creek, Alberta regarding a muskox hunt to be offered by Canada North in 2001. Moore contacted Jerry Hampson to advise him about the hunt. Moore then booked the hunt for himself, Brunner and Hampson and sent his check and one from Hampson to Sinclair.

Canada North used a cabin in the Ellice River in the Province of Nunavut, Canada, for the muskox hunting trip booked by Thomas Moore, Paul Brunner and Jerry Hampson. On August 26, 2001, Jerry Hampson, while in the cabin, placed a pot on a Coleman stove and it caught on fire. Hampson then grabbed a container with clear liquid which he threw on the flames. The liquid, however, was naphtha, a highly flammable substance, which caused an explosion. The cabin caught fire. As a result of this fire, Hampson died, and plaintiffs Paul Brunner and Otte suffered severe burns.

A fire investigation concluded that: (1) the hunting party was accommodated in an inadequate hunting camp that was neither inspected nor licensed for commercial operation; (2) camp safety orientation was not provided; (3) portable fire extinguishers were not provided; and (4) the Coleman camp stove was operated contrary to manufacturer's instructions. Additionally, plaintiffs allege that Jerry Hampson knew or should have known that pouring liquid on a fire is contrary to notions of basic safety.

In their complaint against the Estate of Jerry Jay Hampson, Canada North, and Jerome Knap, plaintiffs Paul Brunner and Douglas Otte alleged that they suffered physical and psychological injuries as a result of the defendants' negligence. Karen Brunner, the wife of Paul Brunner, sued for loss of consortium. The Hampson Estate filed a cross-claim against Canada North and Knap, asserting claims of negligence and wrongful death. For the sake of simplicity, all of the U.S. citizens with claims and cross-claims against the Canadian defendants will be referred to collectively as the "appellants." The men who were in the cabin during the fire and explosion will be referred to as the "hunters."

Canada North and Knap filed a motion to dismiss for lack of personal jurisdiction. The motion was referred to a magistrate judge, who issued a recommendation that the Canadian defendants be dismissed. Despite objections by the appellants, the district court adopted the recommendation and dismissed the Canadian defendants for lack of personal jurisdiction. The Hampson Estate then moved under Rule 54(b) of the Federal Rules of Civil Procedure for the district court's order to be certified as a final appealable judgment. There was no opposition, and the district court granted the motion. This timely appeal followed, but only as to Canada North and not as to Knap.

B. Jurisdictional contacts

Four categories of Canada North's and Knap's contacts with Ohio are arguably relevant to the question of whether the district court had personal jurisdiction over them: (1) contacts by Brent Sinclair, the alleged agent of Canada North, with the state of Ohio involving the hunters, (2) contacts by Canada North itself with the state of Ohio involving the hunters, (3) Canada North's contacts with Ohio not involving the hunters, and (4) Canada North's other contacts with the United States not involving the hunters.

1. Contacts of Brent Sinclair, the alleged agent of Canada North, with the state of Ohio involving the hunters

The first contact with Ohio relating to the hunt at issue came from Brent Sinclair in the form of a fax to Thomas Moore. Moore is not a party to this case, but was in the cabin when the fire took place. The fax suggested that Moore call Sinclair to talk about the details of the hunt. Moore did in fact call Sinclair and later sent deposit checks for himself, Paul Brunner, and Hampson to Sinclair in Canada to reserve spots for the hunt. Sinclair confirmed receipt via fax. Several other telephone calls, faxes, and an email went back and forth between Sinclair and Moore to work out the details of the hunt.

2. Contacts by Canada North itself with the state of Ohio involving the hunters

Canada North had several contacts with Ohio other than through Sinclair. One was in the form of a letter sent to Hampson from Canada North containing information about a polar bear hunt and enclosing a brochure about "all of [Canada North's] hunts," which presumably included the hunt at issue. Another contact was through Global Expedition, a wholly owned subsidiary of Canada North that provided travel services for 85% to 90% of Canada North's customers. Global Expedition and Canada North operate out of the same location and use the same telephone number, fax number, and email address. Moore and Hampson contacted Global Expedition at Sinclair's suggestion to make their travel arrangements.

There were then a series of faxes between Canada North and Moore to work out the details of the travel arrangements—airfare, hotel arrangements, costs, and itinerary. Moore spoke with employees of Canada North in several telephone conversations concerning the subject hunt. Jody Gleeson, who was a Canada North employee, actually made the travel arrangements for Moore and Hampson and mailed the airline tickets and itinerary to the hunters in Ohio. Moore used his credit card to charge the travel costs.

Canada North also maintained a mailing list that included Moore. This mailing list was used to send direct-mail advertisements. Moore received several direct mailings from Canada North, including a brochure advertising the subject hunt.

3. Canada North's contacts with Ohio not involving the hunters

In addition to the contacts with Ohio that directly related to the subject hunt, Canada North had other contacts with the state. It placed advertisements in two periodic publications of Safari Club International (SCI), an American organization for hunters. The frequency of the ads was generally two per year. These periodicals were sent to all SCI members, including Moore and Hampson. Moore saw Canada North's ads in Safari Magazine before the subject hunt. The district court, however, determined that the advertisements and the direct mailings did not induce the hunters to participate in the hunt at issue.

The company also offered discounted hunts to two Ohio chapters of SCI in an effort to improve business. Of SCI's total membership, the Brunner brief claims that 698 are located in Ohio. Canada North's advertisements in the periodicals of SCI were thus sent to hundreds of Ohioans each year. Furthermore, the annual direct mailings sent out by Canada North went to at least 70 Ohio residents on its mailing list that at one time contained approximately 18,000 individuals. There were more Ohioans named on the list prior to some being purged in a periodic updating.

Information about Canada North is located on the website of a Texas booking agency at www.bluewaterbiggame.com. The website contains a description of Canada North, its telephone numbers, and pictures from prior hunts. This information was provided by Canada North. Canada North is also listed as an "International Booking Agent[] from Canada" on www.huntingreport.com, along with a short description...