Emery v. Bioport Corporation, 041608 FED09, 06-36038

Docket Nº:06-36038
Party Name:DALE EMERY, Plaintiff - Appellant, v. BIOPORT CORPORATION, Defendant - Appellee.
Judge Panel:Before: REINHARDT, TASHIMA, and McKEOWN, Circuit Judges.
Case Date:April 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

DALE EMERY, Plaintiff - Appellant,


BIOPORT CORPORATION, Defendant - Appellee.

No. 06-36038

United States Court of Appeals, Ninth Circuit

April 16, 2008


Argued and Submitted April 8, 2008 Seattle, Washington

Appeal from the United States District Court for the Eastern District of Washington D.C. No. CV-06-00008-AAM Alan A. McDonald, District Judge, Presiding

Before: REINHARDT, TASHIMA, and McKEOWN, Circuit Judges.


Plaintiff, Dale Emery, seeks review of the district court’s dismissal of his suit against BioPort Corporation (“BioPort”) for lack of general personal jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Emery, a Washington resident, was inoculated with Anthrax Vaccine Adsorbed (“AVA”) while serving in Texas aboard a ship under contract with the U.S. Navy. Emery subsequently developed erosive rheumatoid arthritis, which he attributes to his inoculation with AVA. Emery filed suit against BioPort, the Michigan-based manufacturer of AVA, in federal district court in Washington. That court dismissed his suit for lack of both specific and general personal jurisdiction. Emery appeals only from the district court’s conclusion that it lacks general jurisdiction over his claim. We review the district court’s determination de novo. See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir. 2006).

A court may exercise general jurisdiction where “continuous corporate operations within a state [are] thought so substantial . . . as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 318 (1945). “The standard for establishing general jurisdiction is ‘fairly high, ’ and requires that the defendant’s contacts be of the sort that approximate physical presence.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (internal citations omitted). In determining whether this standard is met, we engage in a two-part inquiry, asking first whether the forum state’s relevant statute permits the exercise of general jurisdiction and second whether that exercise of jurisdiction comports with federal due process requirements. See Tuazon, 433 F.3d at 1169.1 We conclude that an exercise of general jurisdiction in this case would comport with neither...

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