Miller v. Nippon Carbon Co., Ltd.

• Decision Date: 18 June 2008
• Docket Number: No. 07-2332.,07-2332.
• Parties: Vickie MILLER, Appellant, v. NIPPON CARBON COMPANY, LTD., Appellee, Mitsubishi Logistics Corporation; Intermodal Cartage Company, Inc., Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

528 F.3d 1087

Vickie MILLER, Appellant, v. NIPPON CARBON COMPANY, LTD., Appellee Mitsubishi Logistics Corporation; Intermodal Cartage Company, Inc., Defendants.

No. 07-2332.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2008.

Filed: June 18, 2008.

Taylor A. Cates, argued, Memphis, TN (Joel Porter, Dennis R. Baer, Memphis, TN, Elton A. Rieves, III, Kent J. Rubens, Brian Walthart, West Memphis, AR, on the brief), for appellants.

Kenneth I. Schacter, argued, New York, NY (Steven W. Quattlebaum, Karen S. Halbert, Little Rock, AR, Susanna Y. Chu, New York, NY, on the brief), for appellee.

Before BYE, RILEY, and BENTON, Circuit Judges.

RILEY, Circuit Judge.

Vickie Miller (Miller), a resident of Arkansas, brought a wrongful death action on behalf of her deceased husband against Nippon Carbon Company, Ltd. (Nippon), a Japanese corporation. Finding no personal jurisdiction over Nippon, the district court¹ dismissed Miller's lawsuit. Miller appeals the district court's decision. We affirm.

I. BACKGROUND

This wrongful death action arises out of a tragic incident involving Miller's husband, Larry Miller (Mr. Miller). Mr. Miller was killed while attempting to unload a shipment of electrodes (heavy columns weighing approximately 4,800 pounds, used in the production of steel) at President's Island in Memphis, Tennessee. At the time of the incident, the shipment was en route to Nucor Corporation (Nucor), an Arkansas corporation. Nippon manufactured and sold the electrodes to Nucor. The following are undisputed facts regarding the transaction:

1. Nippon manufactured the electrodes at its plant in Toyama, Japan.

2. Morohishi Freightage, Ltd. packed and loaded the electrodes into cargo containers in Japan for shipment to Nucor.

3. Mitsubishi Logistics Corporation made all arrangements for transportation of the cargo containers to their ultimate destination in Arkansas.

4. Yang Ming Marine Transport Corporation transported the cargo containers by ocean freighter to Long Beach, California, and then by rail to Memphis, Tennessee.

5. Global Material Services, LLC unloaded the cargo containers at President's Island, Tennessee, in preparation for the ultimate delivery by truck to Nucor in Arkansas.

6. Mr. Miller worked for Global Material Services.

Miller initially sued four Japanese companies in a Tennessee federal district court: Nippon (the manufacturer of the electrodes), Morohishi Freightage (the company Nippon hired to package and load the electrodes into cargo containers), Yang Ming Marine (the carrier that shipped the cargo container to Tennessee), and Mitsubishi Logistics (the company that arranged delivery of the electrodes to their ultimate destination in Arkansas). The Tennessee district court dismissed the action for lack of personal jurisdiction. The Tennessee district court also denied Miller's motion to transfer the action to Arkansas under 28 U.S.C. § 1404(a), which permits the transfer of an action to any other district where the action might have been brought.

Miller also filed suit in the Eastern District of Arkansas against Nippon. Nippon moved to dismiss for lack of personal jurisdiction. Concluding there were insufficient minimum contacts between Nippon and Arkansas, the district court granted Nippon's motion to dismiss. The district court found, among other things, Nippon never registered to do business in Arkansas and did not maintain a registered agent, bank account, office, or manufacturing plant in Arkansas, nor did Nippon advertise in the state of Arkansas. The district court did find Nippon sent two representatives to Nucor in Arkansas once or twice a year since 2003, but concluded Mr. Miller's death did not arise from Nippon's contacts with Arkansas. The district court first noted Miller did not argue general personal jurisdiction over Nippon and then decided Miller's claim that Arkansas had specific personal jurisdiction over Nippon did not comport with due process. Miller appeals.

II. DISCUSSION

We review de novo a motion to dismiss for lack of personal jurisdiction, and the nonmoving party needs only make a prima facie showing of jurisdiction. See Dakota Indus., Inc. v. Dakota Sportswear Inc., 946 F.2d 1384, 1387 (8th Cir.1991). If jurisdiction has been controverted, the plaintiff has the burden of proving facts supporting personal jurisdiction. See Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 1072 (8th Cir.2004). "The plaintiff's `prima facie showing' must be tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions and opposition thereto." Id. (quotations and citations omitted).

A federal court may exercise jurisdiction "over a foreign defendant only to the extent permitted by the forum state's long-arm statute and by the Due Process Clause of the Constitution." Dakota Indus., Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir.1994) (citation omitted). The Arkansas long-arm statute confers jurisdiction to the fullest extent permitted by the Due Process Clause. Dever, 380 F.3d at 1073. The Due Process Clause requires that "minimum contacts" exist between the nonresident defendant and the forum state before the court can exercise jurisdiction over the defendant. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

"Sufficient contacts exist when the defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there, and when maintenance of the suit does not offend traditional notions of fair play and substantial justice." Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994) (quoting Soo Line R.R. Co. v. Hawker Siddeley Canada, Inc., 950 F.2d 526, 528 (8th Cir.1991)). "In assessing the defendant's reasonable anticipation, there must be 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." Id. at 818-19; see Burger King Co. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). We have adopted "a five-part test for measuring minimum contacts: (1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties." Id. at 819 (citing Land-O-Nod Co. v. Bassett Furniture Indus., Inc., 708 F.2d 1338, 1340 (8th Cir.1983)). With respect to the third factor, we distinguish between specific jurisdiction and general jurisdiction. Id. "`Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within the forum state,' while `[g]eneral jurisdiction . . . refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.'" Id. (quoting Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir.1993)).

Because Miller does not contend on appeal that the basis for personal jurisdiction is the "continuous and systematic" contacts with the forum state, i.e., general jurisdiction, Johnson v. Woodcock, 444 F.3d 953, 956 (8th Cir.2006), we consider whether specific jurisdiction exists over the defendants. In doing so, "[a]t a minimum . . . we will consider . . . the nature and quality of the contacts, and [their] source and connection to the cause of action." Lakin v. Prudential Sec., Inc., 348 F.3d 704, 712 (8th Cir.2003) (internal quotation marks omitted).

With respect to the nature and quality of the contacts with the forum state, Nippon's contacts with Arkansas are limited. Nippon is not licensed to do business in Arkansas and has no agents, offices, employees, or property in Arkansas. Nippon contends its contacts of selling electrodes to Nucor and sending two representatives to visit Nucor in Arkansas once or twice a year do not constitute contacts from which Miller's claims arise. Nippon states it was not involved in packaging, shipping, loading or unloading the electrodes, thus, it was not involved in the event that caused Mr. Miller's death. According to Nippon, the packaging, shipping, loading and unloading of the electrodes were performed by subcontractors. Nippon emphasizes that when Mr. Miller unloaded the electrodes, he was following orders from his employer, Global Material Services, not from Nippon. Therefore, Nippon asserts its contacts with Arkansas are not enough to establish that Miller's claims arise from those contacts.

To support its position, Nippon relies on Morris v. Barkbuster, Inc., 923 F.2d 1277 (8th Cir.1991). In Barkbuster, F.W. and Associates, Inc. (FWA), an Ohio corporation with its principal place of business in Arizona, sold a log splitter under the trade name Barkbuster to Diversified Distributing, Inc. (DDI), a...