Beverly Kuenzle, Wayne Kuenzle v. HTM Sport-Und Freizeitgerate AG

• Decision Date: 11 December 1996
• Docket Number: SPORT-UND,No. 95-8031,95-8031
• Citation: 102 F.3d 453
• Parties: Beverly KUENZLE and Wayne Kuenzle, Plaintiffs-Appellees, v. HTMFREIZEITGERATE AG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 453

102 F.3d 453

Beverly KUENZLE and Wayne Kuenzle, Plaintiffs-Appellees, v. HTM SPORT-UND FREIZEITGERATE AG, Defendant-Appellant.

No. 95-8031.

United States Court of Appeals, Tenth Circuit.

Dec. 11, 1996.

Hampton K. O'Neill (W. Henry Combs, III, with him on the briefs), of Murane & Bostwick, Casper, WY, for Defendant-Appellant.

William R. Fix, Jackson, WY, for Plaintiffs-Appellees.

Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.

Defendant HTM Sport-Und Freizeitgerate AG (Tyrolia) sought leave to appeal the district court's denial of its motion to dismiss for lack of personal jurisdiction. The district court granted leave for a permissive appeal pursuant to 28 U.S.C. § 1292(b). We accepted the appeal and we now reverse the decision of the district court.

I.

Plaintiff Beverly Kuenzle, a tourist from Missouri, was seriously injured in a skiing accident near Jackson, Wyoming, in 1990. At the time of the accident, Ms. Kuenzle was using Model 285-S ski bindings that were manufactured in Austria by defendant Tyrolia and purchased by her in Switzerland in 1986. Ms. Kuenzle asserts that the bindings were defectively designed, manufactured and/or assembled, and that they had been recalled prior to her accident. She brought this diversity action against Tyrolia in Wyoming, alleging breach of warranty, strict product liability, and negligence. Ms. Kuenzle's husband, Wayne, sued Tyrolia for loss of services, consortium, and companionship, society and support. ¹

Tyrolia has not addressed the merits of the Kuenzle's claims, arguing instead that it had insufficient contacts with Wyoming to support assertion of the court's jurisdiction. Specifically, Tyrolia points out that it is an Austrian company which sells its products in the United States only through an independent distributor and that it conducts no business in Wyoming. The Kuenzles argue that Tyrolia had sufficient contacts with Wyoming, through the actions of its employees and independent distributor, to establish personal jurisdiction.

To determine whether jurisdiction is present, we first review the criteria for establishing personal jurisdiction and then evaluate whether any of the contacts on which the Kuenzles rely satisfy those criteria.

II.

"To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment." Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir.1995) (emphasis omitted). Wyoming courts "may exercise jurisdiction on any basis not inconsistent with [either] the Wyoming or [the] United States constitution." WYO.STAT. § 5-1-107(a) (1992). Because this statute extends Wyoming jurisdiction to the limit of the federal constitution, "our only concern is whether ... maintenance of the suit ... would ... offend the due process clause of the Fourteenth Amendment." Shanks v. Westland Equip. & Parts Co., 668 F.2d 1165, 1167 (10th Cir.1982).

Historically, due process was considered to be satisfied only when a defendant's person or property was present in the forum state. Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565 (1877). The personal presence requirement generally prevented assertion of jurisdiction over a nonresident defendant, id., especially when the defendant was a corporation which was considered "present" only in its state of incorporation. See 4 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1066 (2d ed.1987) (discussing traditional notions of jurisdiction as applied to corporate defendants). In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Court relaxed Pennoyer's rigid presence requirement when it held that, in addition to presence of person or property in the forum, due process would not be offended by the exercise of jurisdiction over a nonresident defendant if that defendant had "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

The " 'minimum contacts' standard may be met in either of two ways." Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996). First, a court may exercise specific jurisdiction if a "defendant has 'purposefully directed' his activities at residents of the forum ... and the litigation results from alleged injuries that 'arise out of or relate to' those activities." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citations omitted) (emphasis added). Second, a court may exercise general jurisdiction where the defendant's contacts, while not rising to the level of the traditional notion of presence in the forum state, are nonetheless "continuous and systematic." Trierweiler, 90 F.3d at 1533 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984)); Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15; Dobbs v. Chevron U.S.A., Inc., 39 F.3d 1064, 1068 (10th Cir.1994); Kennedy v. Freeman, 919 F.2d 126, 128 n. 2 (10th Cir.1990). ² Where "[g]eneral jurisdiction lies ... the state may exercise personal jurisdiction over the defendant, even if the suit is unrelated to the defendant's contacts with the state." Trierweiler, 90 F.3d at 1533.

"Whether a non-resident defendant has the requisite minimum contacts with the forum state to establish in personam jurisdiction must be decided on the particular facts of each case." Shanks, 668 F.2d at 1166. "The plaintiff bears the burden of establishing personal jurisdiction over the defendant." Behagen v. Amateur Basketball Ass'n of the United States, 744 F.2d 731, 733 (10th Cir.1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 1879, 85 L.Ed.2d 171 (1985). As is the case here, "when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing." Id. "We resolve all factual disputes in favor of the plaintiff," and "review[ ] the district court's ruling ... de novo." Far West Capital, 46 F.3d at 1075.

III.

Although the district court held it had in personam jurisdiction over Tyrolia without specifying whether that jurisdiction was specific or general, it applied a specific jurisdiction analysis, as do both parties in their appellate briefs. ³ We will therefore first consider whether Tyrolia is properly subject to specific jurisdiction in Wyoming.

A. Specific Jurisdiction

"Specific jurisdiction may be exercised where the defendant has 'purposefully directed' its activities toward the forum jurisdiction and where the underlying action is based upon activities that arise out of or relate to the defendant's contacts with the forum." In re Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir.1996) (quoting Burger King, 471 U.S. at 472, 105 S.Ct. at 2182). In finding that Tyrolia had sufficient contacts with Wyoming to justify the assertion of personal jurisdiction, the district court considered only one branch of the specific jurisdiction test: the degree of purposeful availment reflected in the contacts of the defendant with the forum state. Although the district court gave extensive review to that issue, it did not address the second prong, which must be met before a court can properly exercise specific jurisdiction. The contacts must reflect purposeful availment and the cause of action must arise out of those contacts.

In this case, Tyrolia manufactured the bindings in Austria and Ms. Kuenzle bought them in Switzerland and brought them to Wyoming herself. Regardless of any contacts that exist between Tyrolia or its independent distributor and the forum, this cause of action for defective bindings and breach of warranty did not arise out of those contacts. As the court noted in Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267 (9th Cir.1995), the requirement "that the claim arises out of or results from the forum-related activities, is ... not satisfied" when the plaintiff "would have suffered the same injury even if none of the [defendant's forum] contacts had taken place." Id. at 271-72. Ms. Kuenzle's accident would have occurred in Wyoming even if Tyrolia had made none of the contacts on which the Kuenzles rely to create jurisdiction. We therefore conclude that the cause of action did not arise out of forum related activities and that the district court does not have specific jurisdiction over Tyrolia. ⁴

B. General Jurisdiction

Although specific jurisdiction fails in this case, due process would not be offended by the district court's assertion of jurisdiction if Tyrolia had contacts with Wyoming sufficient to "constitute the kind of continuous and systematic general business contacts" required for general jurisdiction. Helicopteros, 466 U.S. at 416, 104 S.Ct. at 1873.

In assessing contacts with a forum, courts have considered such factors as: (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation.

Trierweiler, 90 F.3d at 1533 (citing 4 Wright & Miller § 1069 at 348-55 (collecting cases)).

The Kuenzles argue (albeit in the specific jurisdiction context) that Tyrolia has established sufficient contacts with Wyoming in two ways, directly through its acts in the forum, and...