Van Heeswyk v. Jabiru Aircraft Pty., Ltd.

• Decision Date: 24 April 2012
• Docket Number: No. 2 CA–CV 2011–0107.,2 CA–CV 2011–0107.
• Citation: 276 P.3d 46,229 Ariz. 412,633 Ariz. Adv. Rep. 43
• Parties: Susie VAN HEESWYK, an individual and resident of Pima County, Arizona; Kristen Van Heeswyk, an individual and resident of Clark County, Nevada; and Victoria Van Heeswyk, an individual and resident of Boulder County, Colorado, Plaintiffs/Appellants, v. JABIRU AIRCRAFT PTY., LTD., an Australian limited company, Defendant/Appellee.
• Court: Arizona Court of Appeals

229 Ariz. 412

276 P.3d 46

633 Ariz. Adv. Rep. 43

Susie VAN HEESWYK, an individual and resident of Pima County, Arizona; Kristen Van Heeswyk, an individual and resident of Clark County, Nevada; and Victoria Van Heeswyk, an individual and resident of Boulder County, Colorado, Plaintiffs/Appellants,

v.JABIRU AIRCRAFT PTY., LTD., an Australian limited company, Defendant/Appellee.

No. 2 CA–CV 2011–0107.

Court of Appeals of Arizona, Division 2, Department B.

April 24, 2012.

Sanders & Parks, P.C. By Brett M. Hager and Shanks Leonhardt, Phoenix, Attorneys for Plaintiffs/Appellants.

Smithamundsen, LLC By Alan L. Farkas, Chicago, IL, and CKGH Law, P.C. By Christian K.G. Henrichsen, Phoenix, Attorneys for Defendant/Appellee.

OPINION

VÁSQUEZ, Presiding Judge.

[229 Ariz. 415]¶ 1 In this wrongful death action, Susie Van Heeswyk, Kristen Van Heeswyk, and Victoria Van Heeswyk (collectively “the Van Heeswyks”) appeal from the trial court's order dismissing their complaint against Jabiru Aircraft Pty., Ltd. (hereinafter “Jabiru”) for damages arising from the death of Gerard Van Heeswyk (“Gerard” or “decedent”). On appeal, the Van Heeswyks argue the court erred in finding it lacked personal jurisdiction over Jabiru. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to the Van Heeswyks. See A. Uberti & C. v. Leonardo, 181 Ariz. 565, 566, 892 P.2d 1354, 1355 (1995). On June 1, 2008, Gerard was killed when the airplane he was piloting crashed in Marana, Arizona. He had assembled the Arion Lightning aircraft from a kit sold by Jabiru's distributor, Jabiru USA Sport Aircraft, LLC, located in Tennessee (“Jabiru USA”). Gerard purchased the kit, which included a Jabiru 3300 engine, through Greg Hobbs, a retailer located in Arizona and an agent for Arion aircraft. Gerard built the aircraft in Hobbs's hanger located in Marana and completed construction in December 2007. After an inspection and a successful “maiden flight” by a test-pilot-for-hire, Gerard flew the aircraft uneventfully for several hours between February 28 and May 19, 2008. However, while Gerard was flying the aircraft on June 1, the propeller assembly detached and the plane crashed. Gerard died at the scene.

¶ 3 Gerard's wife and personal representative of his estate, Susie Van Heeswyk, and his daughters, Kristen and Victoria Van Heeswyk, filed this action alleging claims for strict products liability, negligence, misrepresentation of chattels, failure to warn, breach of warranty, and breach of implied warranty. The complaint named the following defendants: Jabiru, an Australian limited liability company or limited partnership; Sensenich Propeller Manufacturing Co., Inc., a Pennsylvania corporation; and Greg Hobbs and Jane Doe Hobbs, husband and wife, residents of Pinal County.¹

¶ 4 Jabiru has no offices or employees in Arizona and does not directly sell its products to retail customers anywhere in the United States. It does, however, have three North American distributors that sell its products throughout the United States: Jabiru USA, located in Tennessee; Jabiru Pacific, LLC, located in California (“Jabiru Pacific”); and Suncoast Sportplanes, Inc., located in Florida (“Suncoast”). Between 2004 and 2006, Jabiru USA and Jabiru Pacific sold a combined total of 116 Jabiru products in Arizona, the majority of which were sold in 2006—the year Gerard purchased the Jabiru engine that is the subject of this action.

¶ 5 After hearing oral argument on Jabiru's motion to dismiss, the trial court concluded the Van Heeswyks had failed to meet their burden of establishing a prima facie case for personal jurisdiction. The court nonetheless granted them sixty days to conduct limited discovery focusing on “the relationship between the independent distributors and Jabiru Australia,” and the volume of sales of Jabiru products in Arizona during the relevant time period. The parties subsequently filed supplemental briefs and again argued the jurisdictional issue to the court. In an under-advisement ruling, the court granted Jabiru's request to dismiss the Van Heeswyks' complaint and entered a final order pursuant to Rule 54(b), Ariz. R. Civ. P. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).

Discussion

¶ 6 The Van Heeswyks argue Jabiru has sufficient “minimum contacts with Arizona necessary to support personal jurisdiction,” thus the trial court erred by granting Jabiru's Rule 12(b)(2), Ariz. R. Civ. P., motion to dismiss. “We review de novo a dismissal for lack of in personam jurisdiction and ‘simply look to the non-moving party to make a prima facie showing of jurisdiction.’ ” Uberti, 181 Ariz. at 569, 892 P.2d at 1358,quoting Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir.1994). The plaintiff cannot meet this burden with bare allegations but must come forward with facts, established by affidavit or otherwise, supporting jurisdiction. Macpherson v. Taglione, 158 Ariz. 309, 311–12, 762 P.2d 596, 598–99 (App.1988). Once the plaintiff makes a prima facie showing, the defendant then has the burden of rebuttal. Id. at 312, 762 P.2d at 599.

¶ 7 “Arizona courts may exercise personal jurisdiction to the maximum extent allowed by the United States Constitution.” Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, ¶ 12, 246 P.3d 343, 346 (2011); see alsoAriz. R. Civ. P. 4.2(a). The question of personal jurisdiction, therefore, “hinges on federal law.” Uberti, 181 Ariz. at 569, 892 P.2d at 1358. The Due Process Clause of the Fourteenth Amendment protects a defendant from “the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting Int'l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Due process thus requires that before a state court exerts jurisdiction over a nonresident defendant, it must first be shown the defendant has minimum contacts with the forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154,quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940).

¶ 8 Personal jurisdiction is described as being either “general” or “specific.” Williams v. Lakeview Co., 199 Ariz. 1, ¶ 6, 13 P.3d 280, 282 (2000). “[A] state may exercise general jurisdiction ... over its own citizens, ... and over nonresident corporations whose activities in the state are ‘systematic and continuous,’ ” even if the suit's subject matter is wholly unrelated to the forum. Planning Grp., 226 Ariz. 262, ¶ 13, 246 P.3d at 346,quoting Int'l Shoe, 326 U.S. at 320, 66 S.Ct. 154. Specific jurisdiction, on the other hand, is “jurisdiction with respect to a particular claim,” and requires “sufficient contacts” with the forum such that it is “reasonable, in the context of our federal system of government, to require the [defendant] to defend the particular suit which is brought there.” Planning Grp., 226 Ariz. 262, ¶¶ 13–14, 246 P.3d at 346–47,quoting Int'l Shoe, 326 U.S. at 317, 66 S.Ct. 154.

¶ 9 Our supreme court has adopted a “holistic approach” for determining whether personal jurisdiction exists. Planning Grp., 226 Ariz. 262, ¶ 25, 246 P.3d at 349. Under this approach, we ask one question: “Considering all of the contacts between the defendant[ ] and the forum state, did th[e] defendant[ ] engage in purposeful conduct for which [it] could reasonably expect to be haled into that state's court with respect to that conduct?” Id. There is no mechanical formula, however, and “[t]he facts of each case must [always] be weighed in determining whether personal jurisdiction would comport with fair play and substantial justice.” Id. ¶ 15. “[C]asual or accidental contacts by a defendant with the forum state, particularly those not directly related to the asserted cause of action, cannot sustain the exercise of specific jurisdiction.” Id. ¶ 16. “Nor can the requisite contacts be established through the unilateral activities of the plaintiff.” Id.

¶ 10 Here, the Van Heeswyks maintain they met their prima facie burden of establishing personal jurisdiction and the trial court “failed to properly apply binding precedent” in resolving the issue. Citing Uberti, 181 Ariz. at 572, 892 P.2d at 1361, they contend Jabiru is subject to specific jurisdiction in this state because it utilized its North American distributors “ ‘to penetrate the American market’ ” and target Arizona customers. They point to steady and consistent sales of Jabiru products in this state and an exclusive distribution agreement between Jabiru and Jabiru Pacific requiring that both the distributor and manufacturer “use [their] best efforts to actively promote sales and service” of Jabiru products in Arizona. And as further evidence of Jabiru's minimum contacts sufficient to subject it to personal jurisdiction in Arizona, the Van Heeswyks point to Jabiru's advertisements in Kitplanes magazine identifying its American distributors and their contact information.

¶ 11 In response, Jabiru argues the case was properly dismissed because “[t]here is no basis” to impute the conduct of its distributors to it, and “[t]here is no nexus between the claims asserted against Jabiru ... and any alleged contacts with Arizona.” Jabiru insists that, as to the particular Jabiru 3300 engine purchased by the decedent, Jabiru's “commercial transaction was complete” when it shipped the engine to its distributor, Jabiru USA, and it never “had any reason to expect” the engine would end up in Arizona and never “did anything to cause” the engine to enter the state. With respect to the...