Mizokami Bros. of Arizona, Inc. v. Baychem Corp.

• Citation: 556 F.2d 975
• Decision Date: 07 July 1977
• Docket Number: No. 75-2991,75-2991
• Parties: MIZOKAMI BROS. OF ARIZONA, INC., an Arizona Corporation, Appellant, v. BAYCHEM CORPORATION, a Delaware and New Jersey Corporation, Bayer de Mexico, S.A., a corporation of the United States of Mexico, Bayer AG, a corporation of the Federal Republic of Germany, and Compania Vamex de Los Mochis, S.A., a corporation of the United States of Mexico, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 975

556 F.2d 975

MIZOKAMI BROS. OF ARIZONA, INC., an Arizona Corporation, Appellant, v. BAYCHEM CORPORATION, a Delaware and New Jersey Corporation Bayer de Mexico, S.A., a corporation of the United States of Mexico, Bayer AG, a corporation of the Federal Republic of Germany, and Compania Vamex de Los Mochis, S.A., a corporation of the United States of Mexico, Appellees.

No. 75-2991.

United States Court of Appeals Ninth Circuit.

July 7, 1977.

James Stroud, F. Trowbridge vom Baur, vom Baur, Coburn, Simmons & Turtle, Washington, D. C., argued for appellant.

Jack Redhair, Chandler, Tullar, Udall & Richmond, Tucson, Ariz., argued for appellee, Baychem.

Jack E. Brown, Brown, Vlassis & Bain, Phoenix, Ariz., argued for appellee Bayer Ag.

John F. Molloy, Robertson, Molloy, Fickett & Jones, Tucson, Ariz., argued for appellee Bayer de Mexico.

Appeal from the United States District Court for the District of Arizona.

Before ELY and GOODWIN, Circuit Judges, and SOLOMON, ^* District Judge.

PER CURIAM:

Mizokami Bros. of Arizona, an importer of Mexican-grown produce for sale in the United States and Canada, sustained losses when United States Customs officers turned back a shipment of bell peppers at the Mexican border because the vegetables were contaminated with excessive residues of the chemical Tamaron. Mizokami sued Bayer AG and its corporate children, Bayer de Mexico and Baychem, in the United States District Court for the District of Arizona. The court dismissed the action against the first two defendants for want of in personam jurisdiction under Arizona's long-arm statute and against the third for reasons of forum non conveniens. We affirm.

Baychem manufactured the Tamaron in Missouri for Bayer AG, the world patent owner, who in turn sold it to Bayer de Mexico. Eventually it was sold to Mexican farmers who used it on crops bought by Mizokami. Neither Bayer de Mexico nor Bayer AG did business in Arizona, and neither acted within the forum. The only effect alleged in Arizona was the loss to Mizokami when the chemically treated vegetables failed to gain entry into the United States.

Mizokami attempted to predicate long-arm liability against Bayer AG, the German parent of both Baychem and Bayer de Mexico, on the theory that Baychem, a subsidiary of Bayer AG, did business in Arizona. However, the business done in Arizona by Baychem was unrelated to the claim, and the mere existence of the parent-subsidiary relationship is not alone a sufficient basis for long-arm jurisdiction of the parent. Lycoming Division of Avco Corp. v. Superior Court, 22 Ariz.App. 150, 524 P.2d 1323, 1326 (1974). Bayer AG was not alleged to have any other connection with Arizona.

Plaintiff alleges that Bayer de Mexico knew or should have known that the chemical would be used on crops intended for United States markets, including Arizona. These allegations do not provide the minimum contacts required by the Due Process Clause for personal jurisdiction. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784 (9th Cir. 1977); L. D. Reeder Contractors v. Higgins Industries, Inc., 265 F.2d 768, 773-774 (9th Cir. 1959). To the extent that the district court grounded its dismissal upon the failure of the complaint to allege facts establishing in personam jurisdiction, the judgment must be affirmed.

The dismissal of Mizokami's action against Baychem on the ground of forum non conveniens must also be affirmed. The determination of the appropriateness of the doctrine is entrusted to the sound discretion of the trial court. Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 513 F.2d 667 (9th Cir. 1975).

Here, an Arizona corporation seeks to maintain an action in a court of the United States against a Delaware corporation which has its headquarters in Missouri. Such cases are filed in the federal courts daily. But we have been cited no case in which the facts are quite like those presently before us. Numerous cases suggest that a defendant must meet an almost impossible burden in order to deny a citizen access to the courts of this country. We note particularly Burt v. Isthmus Development Co., 218 F.2d 353 (5th Cir.), cert. denied, 349 U.S. 922, 75 S.Ct. 661, 99 L.Ed. 1254 (1955), wherein the court stated:

" * * * (C)ourts should require positive evidence of unusually extreme circumstances, and should...