Copiers Typewriters Calculators v. Toshiba Corp., Civ. A. No. M-81-3052.

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Citation: 576 F. Supp. 312
• Docket Number: Civ. A. No. M-81-3052.
• Parties: COPIERS TYPEWRITERS CALCULATORS, INC. v. TOSHIBA CORPORATION, et al.
• Decision Date: 30 November 1983

576 F. Supp. 312

COPIERS TYPEWRITERS CALCULATORS, INC.
v.
TOSHIBA CORPORATION, et al.

Civ. A. No. M-81-3052.

United States District Court, D. Maryland.

November 30, 1983.

576 F. Supp. 313

COPYRIGHT MATERIAL OMITTED

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Michael D. Berman (argued), Paul D. Bekman (on the brief), and Kaplan, Heyman,

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Greenberg, Engelman & Belgrad, P.A., Baltimore, Md., Roger K. Zuker, Camp Springs, Md., Sylman I. Euzent, Gaithersburg, Md., for plaintiff

John J. Witmeyer, III, (argued), Michael L. Anania, and Ford, Marrin, Esposito & Witmeyer, New York City, Martin S. Protas and Protas, Kay, Spivok & Protas, Rockville, Md., for defendants Toshiba Corp., Toshiba America, Inc., and Ronald Sid Reisch.

Richard G. McAlee and Gordon, Feinblatt, Rothman, Hofferberger & Hollander, Baltimore, Md., J. William Hayton and Bell, Boyd & Lloyd, Chicago, Ill., for defendant Underwriters Laboratories, Inc.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

On November 30, 1981, the plaintiff, Copiers Typewriters Calculators, Inc. (CTC) (then known as Robey's Office Machines, Inc.), filed suit against the defendants, Toshiba Corporation (Toshiba), Toshiba America, Inc. (TAI), Ronald Sid Reisch (Reisch), and Underwriters Laboratories, Inc., alleging breach of contract; intentional and negligent faulty design, manufacture, assembly and testing; breach of express and implied warranties; negligent failure to warn; fraudulent and negligent misrepresentation; fraudulent non-disclosure of facts; deceit in conduct; and commercial revocation of previous agreements arising from the sale of Toshibafax photocopying machines to CTC, a dealer in such products. (Paper No. 1).

On April 1, 1982, Toshiba and TAI filed a joint motion to dismiss and for partial summary judgment. (Paper No. 14). Leave was granted the plaintiff to conduct discovery on the issues raised by this motion before responding to the motion. (Paper No. 19). On July 14, 1982, the defendant Reisch filed a Motion to Dismiss (Paper No. 33), and discovery was conducted on the issues raised by that motion as well. After extensive discovery, the plaintiff filed its opposition on August 22, 1983 to the Toshiba-TAI Motion to Dismiss (Paper No. 82), and to the Reisch motion as well. (Paper No. 88). The defendants have replied. (Paper Nos. 92 & 94). A hearing was held on November 18, 1983.

I. Supplemental Motion to Strike Affidavits of Koichiro Nakamoto, Tadashi Wakayama and Nobuyuki Horiuchi

On October 4, 1983, this court reviewed the plaintiff's Motion to Strike the affidavits of Koizumi, Reisch and Kitagawa. (Paper No. 102). Thereafter, on October 7, 1983, the plaintiff filed a supplemental motion to strike the affidavits of Nakamoto, Wakayama, and Horiuchi because such affidavits were made on knowledge and belief. (Paper No. 103). Toshiba responded by stating that (1) the contents of the affidavits demonstrate that the statements were made from personal knowledge of the facts, (2) Mr. Horiuchi states he has personal knowledge of the facts, he and Mr. Wakayama state that they are competent to testify, and Mr. Nakamoto is a lawyer expressing his opinion on Japanese law, and (3) the wording of the cover page on which the phrase "knowledge and belief" is used is the required format and the mandatory wording required by the United States Consul in order to have the affidavits attested to by him. (Paper No. 113).

In reply, the plaintiff states that an alternative to attestation by the United States Consul was available as set forth in 28 U.S.C. § 1746(1), and additionally contends in support of the Motion to Strike that (1) the Horiuchi affidavit is defective because paragraph 8 fails to demonstrate actual knowledge of the facts, (2) the Nakamoto affidavit cannot be relied upon because notice of an intent to rely on the law of a foreign nation was not given, and (3) Mr. Nakamoto was not identified as an expert in Reisch's Answers to Interrogatories. (Paper No. 120). Toshiba has countered. (Paper No. 121).

As stated by this court in its October 4, 1983 Order, evidence that the affiant has knowledge of the facts contained in his affidavit need not be contained in the traditional litany of same, but can be demonstrated

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from the face of the affidavit itself. McLaughlin v. Copeland, 435 F.Supp. 513, 519 (D.Md.1977). Since the cover page of attestation before the United States Consul in Japan has a mandatory format suggesting a lack of personal knowledge on the part of the affiant, the content of the affidavit itself is more important than usual in a determination of whether it meets the requirements of Rule 56(e). If only a portion of the affidavit meets such requirements, the entire affidavit need not be stricken, but only those portions which are deficient. Id.

Nobuyuki Horiuchi is the Senior Manager of the Administration and Planning Department of the International Operations-Consumer Products Division of Toshiba. (Horiuchi Affidavit ¶ 1). He states that he has personal knowledge of whether Toshiba had any offices in the United States from January 1, 1976 to the present. (Id. ¶ 1). In addition, he states at the end of the affidavit that he has personal knowledge of all the facts contained in the affidavit and that he is competent to testify thereto. (Id. ¶ 13). These statements are sufficient to demonstrate knowledge and competence to testify to all of the facts contained in the affidavit, with the exception of the third sentence in paragraph 8 where he indicates that he has been advised that the service stations in Exhibit E are companies doing business with TAI. Because this sentence is the product of advice from others, the third sentence in paragraph 8 of the Horiuchi affidavit is hereby stricken.

Tadashi Wakayama is the Manager of the Americas Group for the International Operations-Electronic Components Division of Toshiba. In his affidavit, Wakayama indicates that he has personal knowledge regarding the goods shipped by Toshiba to destinations in the State of Maryland as identified in Exhibit A of the plaintiff's Reply Brief to the Toshiba-TAI Motion to Dismiss. (Wakayama Affidavit ¶ 1). He attests to his competence in paragraph 7 of the affidavit. Because all the facts sworn to by him relate to matters as to which he has sworn he has personal knowledge, the motion to strike this affidavit is denied.

Mr. Nakamoto, as has been stated, is a Japanese lawyer whose affidavit contains statements concerning Japanese law. Although the plaintiff objects because Mr. Nakamoto was not identified in Reisch's Answers to Interrogatories which requested the identification of all experts, those interrogatories were not directed to the defendants which are submitting the affidavit of Mr. Nakamoto. The plaintiff's other objection that notice of the use of foreign law was not given in accordance with Rule 44.1, Fed.R.Civ.P., need not be reached because the contents of the Nakamoto affidavit, relating to an explanation of Japanese law, is not relied upon by the defendant Toshiba in either its original motion to dismiss or its reply, and is not necessary to resolve the contentions made by Toshiba.

II. Motion to Dismiss Defendant Toshiba for Lack of Personal Jurisdiction

A. Background Facts

In the case sub judice, Toshiba, a Japanese corporation, manufactures, among other goods, photocopiers. (Paper No. 1, at 2; Kitagawa Affidavit ¶ 7). Toshiba is not licensed to do business in Maryland. (Kitagawa Affidavit ¶ 2). Toshiba sells its photocopiers FOB Japan to TAI, a wholly owned New York subsidiary. (Reisch Affidavit ¶ 6; Kitagawa Affidavit ¶ 3; Wakayama Affidavit ¶ 1). TAI is a New York corporation with its principal office in Wayne, New Jersey. (Reisch Affidavit ¶ 4).

Toshiba does not own or lease property in Maryland, has no bank accounts in Maryland, has no employees in Maryland, and has no offices, warehouses, branches or places in which it regularly conducts business in Maryland. (Kitagawa Affidavit ¶¶ 3-6). Mr. Horiuchi's affidavit also reveals that Toshiba does not conduct business from TAI facilities, has no common directors with TAI, and does not maintain

576 F. Supp. 317

any joint bank accounts with TAI. (Horiuchi Affidavit ¶ 5)

The plaintiff asserts that this court has personal jurisdiction over Toshiba, which has its principal place of business in Tokyo, Japan (Paper No. 1, at 12), (1) because Toshiba placed its goods into the stream of commerce intending to sell those goods in the United States, (2) because, together with the acts of its wholly owned subsidiary, it was transacting business in Maryland, (3) because Toshiba derived substantial revenue from the sale of its goods in the State of Maryland where an alleged tortious injury occurred, and finally (4) because Toshiba has contracted to act as surety for property within the State of Maryland.

B. World Wide Volkswagen Decision

In World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Supreme Court examined whether a regional distributor, which marketed cars in only three eastern states, and a car dealer located and doing business in New York were subject to the Oklahoma court's exercise of personal jurisdiction in a case where a car sold by the defendant dealer was involved in an accident in Oklahoma. Because the Court concluded that the regional distributor and the retail dealer, both New York corporations, had no reasonable expectation that they would be subject to Oklahoma's adjudication of an incident involving the car arising in Oklahoma, the defendant was not subject to the jurisdiction of the Oklahoma court. The Court stated that foreseeability alone was insufficient to meet the minimum contacts requirement, but continued, stating,

"the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and

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