Asahi & Nicastro

Civil Procedure Bernstein

ASAHI METAL INDUSTRY CO. v. SUPERIOR COURT. 480 U.S. 102 (1987).
Justice OCONNOR announced the judgment of the Court and delivered the
unanimous opinion of the Court with respect to Part I, the opinion of the Court
with respect to Part IIB, in which THE CHIEF JUSTICE, Justice BRENNAN,
Justice WHITE, Justice MARSHALL, Justice BLACKMUN, Justice POWELL, and
Justice STEVENS join, and an opinion with respect to Parts IIA and III, in which
THE CHIEF JUSTICE, Justice POWELL, and Justice SCALIA join.
[Note to students: keep track of how many Justices agree with what!]
This case presents the question whether the mere awareness on the part of
a foreign defendant that the components it manufactured, sold, and
delivered outside the United States would reach the forum State in the
stream of commerce constitutes minimum contacts between the
defendant and the forum State such that the exercise of jurisdiction does
not offend traditional notions of fair play and substantial justice.
International Shoe Co. v. Washington (1945), quoting Milliken v. Meyer
(1940).
I
[After an accident that injured him and killed his wife, Gary Zurcher filed a
product liability suit in California state court, alleging that the accident
was caused by a defective rear tire, tube, and sealant on his Honda
motorcycle. Zurcher sued, inter alia, Cheng Shin Rubber Industrial Co., the
tube manufacturer. Cheng Shin filed a cross-claim for indemnification
against Asahi Metal Industry, Co., the tubes valve assembly manufacturer.
(Cross-claiming is a form of joinder: Cheng Shin claims that any defect in
its product is actually the fault of Asahi, which should be pay any damages
assessed against Cheng Shin.) After various settlements and dismissals, the
only remaining claim was Cheng Shins action for indemnity against Asahi.
Asahi claimed that California courts could not exert personal jurisdiction
over it.]
[Cheng Shin is a Taiwanese corporation. Asahi is a Japanese corporation
that sold valve assemblies for tire tubes to Cheng Shin in Taiwan. Sales to
Cheng Shin included over 100,000 assemblies per year for the years 19781982, and comprised about 1.24% of Asahis income in 1981 and .44% in
1982. Cheng Shin purchased assemblies from other suppliers as well. It
sells tire tubes throughout the world; about 20% of its United States sales
are in California. In an affidavit, a Cheng Shin manager stated, In
discussions with Asahi. . . the fact that my Company sells tubes throughout
the world and specifically in the United States has been discussed. I . . .
believe that Asahi was fully aware that valve stem assemblies . . . would
end up throughout the United States and in California. An affidavit of the
president of Asahi, on the other hand, declared that Asahi never
contemplated that its limited sales of tire valves to Cheng Shin in Taiwan
would subject it to lawsuits in California.]
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[The California State Supreme Court found that petitioners intentional act
of placing its assemblies into the stream of commerce by delivering them to
Cheng Shin in Taiwan, coupled with its awareness that some of them would
eventually reach California, sufficed to support personal jurisdiction. The
Supreme Court reverses.]
II. A
The Due Process Clause of the Fourteenth Amendment limits the power of
a state court to exert personal jurisdiction over a nonresident defendant.
[T]he constitutional touchstone of the determination whether an exercise
of personal jurisdiction comports with due process remains whether the
defendant purposefully established minimum contacts in the forum State.
Burger King Corp. v. Rudzewicz (1985), quoting International Shoe Co. v.
Washington. Most recently we have reaffirmed the oft-quoted reasoning of
Hanson v. Denckla (1958), that minimum contacts must have a basis in
some act by which the defendant purposefully avails itself of the privilege
of conducting activities within the forum State, thus invoking the benefits
and protections of its laws. Burger King.Jurisdiction is proper ... where
the contacts proximately result from actions by the defendant himself that
create a substantial connection with the forum State. Id.
Applying the principle that minimum contacts must be based on an act of
the defendant, the Court in World-Wide Volkswagen Corp. v. Woodson
(1980), rejected the assertion that a consumers unilateral act of bringing
the defendants product into the forum State was a sufficient constitutional
basis for personal jurisdiction over the defendant. It had been argued in
World-Wide Volkswagen that because an automobile retailer and its
wholesale distributor sold a product mobile by design and purpose, they
could foresee being haled into court in the distant States into which their
customers might drive. The Court rejected this concept of foreseeability as
an insufficient basis for jurisdiction under the Due Process Clause. The
Court disclaimed, however, the idea that foreseeability is wholly
irrelevant to personal jurisdiction, concluding that [t]he forum State does
not exceed its powers under the Due Process Clause if it asserts personal
jurisdiction over a corporation that delivers its products into the stream of
commerce with the expectation that they will be purchased by consumers
in the forum State. The Court reasoned:
When a corporation purposefully avails itself of the privilege of
conducting activities within the forum State, it has clear notice that it is
subject to suit there . . . Hence if the sale of a product of a manufacturer or
distributor ... is not simply an isolated occurrence, but arises from the
efforts of the manufacturer or distributor to serve, directly or indirectly, the
market for its product in other States, it is not unreasonable to subject it to
suit in one of those States if its allegedly defective merchandise has there
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been the source of injury to its owners or to others. Id. . . .
Since World-Wide Volkswagen, lower courts have been confronted with
cases in which the defendant acted by placing a product in the stream of
commerce, and the stream eventually swept defendants product into the
forum State, but the defendant did nothing else to purposefully avail itself
of the market in the forum State. Some courts have understood the Due
Process Clause, as interpreted in World-Wide Volkswagen, to allow an
exercise of personal jurisdiction to be based on no more than the
defendants act of placing the product in the stream of commerce. Other
courts have understood the Due Process Clauseto require the action of
the defendant to be more purposefully directed at the forum State than the
mere act of placing a product in the stream of commerce. . . .
We now find this latter position to be consonant with the requirements of
due process. The substantial connection between the defendant and the
forum State necessary for a finding of minimum contacts must come about
by an action of the defendant purposefully directed toward the forum
State. The placement of a product into the stream of commerce, without
more, is not an act of the defendant purposefully directed toward the forum
State. Additional conduct of the defendant may indicate an intent or
purpose to serve the market in the forum State, for example, designing the
product for the market in the forum State, advertising in the forum State,
establishing channels for providing regular advice to customers in the
forum State, or marketing the product through a distributor who has
agreed to serve as the sales agent in the forum State. But a defendants
awareness that the stream of commerce may or will sweep the product into
the forum State does not convert the mere act of placing the product into
the stream into an act purposefully directed toward the forum State.
[Even if Asahi was aware that its products may end up in California,]
respondents have not demonstrated any action by Asahi to purposefully
avail itself of the California market. Asahi does not do business in
California. It has no office, agents, employees, or property in California. It
does not advertise or otherwise solicit business in California. It did not
create, control, or employ the distribution system that brought its valves to
California. Cf. There is no evidence that Asahi designed its product in
anticipation of sales in California. On the basis of these facts, the exertion
of personal jurisdiction over Asahi by the Superior Court of California
exceeds the limits of due process.
B
The strictures of the Due Process Clause forbid a state court to exercise
personal jurisdiction over Asahi under circumstances that would offend
traditional notions of fair play and substantial justice. International
Shoe Co.; quoting Milliken v. Meyer.
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. . . . A court must consider the burden on the defendant, the interests of
the forum State, . . . the plaintiffs interest in obtaining relief [,] the
interstate judicial systems interest in obtaining the most efficient
resolution of controversies; and the shared interest of the several States in
furthering fundamental substantive social policies. World-Wide
Volkswagen.
A consideration of these factors in the present case clearly reveals the
unreasonableness of the assertion of jurisdiction over Asahi . . . . [T]he
burden on the defendant in this case is severe. Asahi has been
commanded . . . not only to [appear in California], but also to submit its
dispute with Cheng Shin to a foreign nations judicial system. . . .
When minimum contacts have been established, often the interests of the
plaintiff and the forum in the exercise of jurisdiction will justify even the
serious burdens placed on the alien defendant. In the present case,
however, the interests of the plaintiff and the forum in Californias
assertion of jurisdiction over Asahi are slight. All that remains is a claim for
indemnification asserted by Cheng Shin, a Taiwanese corporation, against
Asahi. . . . Cheng Shin has not demonstrated that it is more convenient for
it to litigate its indemnification claim against Asahi in California rather
than in Taiwan or Japan.
Because the plaintiff is not a California resident, Californias legitimate
interests in the dispute have considerably diminished. . . . The dispute
between Cheng Shin and Asahi is primarily about indemnification rather
than safety standards. Moreover, it is not at all clear at this point that
California law should govern the question whether a Japanese corporation
should indemnify a Taiwanese corporation on the basis of a sale made in
Taiwan and a shipment of goods from Japan to Taiwan. . . .
[The interests of the several states inquiry, in this case,] calls for a court
to consider the procedural and substantive policies of other nations whose
interests are affected by the assertion of jurisdiction by the California
court. . . . [T]hose interests, as well as the Federal interest in Governments
foreign relations policies, will be best served by a careful inquiry into the
reasonableness of the assertion of jurisdiction in the particular case, and
an unwillingness to find the serious burdens on an alien defendant
outweighed by minimal interests on the part of the plaintiff or the forum
State. . . .
Considering the international context, the heavy burden on the alien
defendant, and the slight interests of the plaintiff and the forum State, the
exercise of personal jurisdiction by a California court over Asahi in this
instance would be unreasonable and unfair. . . .
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Concurrence 1. Justice BRENNAN, with whom Justice WHITE, Justice
MARSHALL, and Justice BLACKMUN join, concurring in part and
concurring in the judgment.
I do not agree with the interpretation in Part IIA of the stream-ofcommerce theory, nor with the conclusion that Asahi did not purposely
avail itself of the California market. I do agree, however, with the Courts
conclusion in Part IIB that the exercise of personal jurisdiction over Asahi
in this case would not comport with fair play and substantial justice, This
is one of those rare cases in which minimum requirements inherent in the
concept of fair play and substantial justice ... defeat the reasonableness of
jurisdiction even [though] the defendant has purposefully engaged in forum
activities. Burger King. I therefore join Parts I and IIB of the Courts
opinion, and write separately to explain my disagreement with Part IIA.
Part IIA states that [a plaintiff must show additional conduct by a
defendant, beyond mere awareness that the stream of commerce may or
will sweep the product into the forum State.] I see no need for such a
showing, however. The stream of commerce refers not to unpredictable
currents or eddies, but to the regular and anticipated flow of products from
manufacture to distribution to retail sale. As long as a participant in this
process is aware that the final product is being marketed in the forum
State, the possibility of a lawsuit there cannot come as a surprise. Nor will
the litigation present a burden for which there is no corresponding benefit.
A defendant who has placed goods in the stream of commerce benefits
economically from the retail sale of the final product in the forum State,
and indirectly benefits from the States laws that regulate and facilitate
commercial activity. These benefits accrue regardless of whether that
participant directly conducts business in the forum State, or engages in
additional conduct directed toward that State. . . .
[The World Wide Volkswagon] Court reasoned that when a corporation may
reasonably anticipate litigation in a particular forum, it cannot claim that
such litigation is unjust or unfair, because it can act to alleviate the risk of
burdensome litigation by procuring insurance, passing the expected costs
on to consumers, or, if the risks are too great, severing its connection with
the State. Ibid. To illustrate the point, the Court contrasted the
foreseeability of litigation in a State to which a consumer fortuitously
transports a defendants product (insufficient contacts) with the
foreseeability of litigation in a State where the defendants product was
regularly sold (sufficient contacts). The Court stated:
Hence if the sale of a product of a manufacturer or distributor . . . is not
simply an isolated occurrence, but arises from the efforts of the
manufacturer or distributor to serve, directly or indirectly, the market for
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its product in other States, it is not unreasonable to subject it to suit in one
of those States . . . . The forum State does not exceed its powers under the
Due Process Clause if it asserts personal jurisdiction over a corporation
that delivers its products into the stream of commerce with the expectation
that they will be purchased by consumers in the forum State. Id.. . .
In this case, the facts found by the California Supreme Court support its
finding of minimum contacts[:] [a]lthough Asahi did not design or control
the system of distribution that carried its valve assemblies into California,
Asahi was aware of the distribution systems operation, and it knew that it
would benefit economically from the sale in California of products
incorporating its components. . . . .
Concurrence 2. Justice STEVENS, with whom Justice WHITE and Justice
BLACKMUN join, concurring in part and concurring in the judgment.
The judgment of the Supreme Court of California should be reversed for
the reasons stated in Part IIB of the Courts opinion. While I join Parts I
and IIB, I do not join Part IIA for two reasons. First, it is not necessary to
the Courts decision. . . . Part IIB establishes . . . that Californias exercise
of jurisdiction over Asahi in this case would be unreasonable and unfair. .
. . Accordingly, I see no reason in this case for the plurality to articulate
purposeful direction or any other test as the nexus between an act of a
defendant and the forum State that is necessary to establish minimum
contacts.
Second, even assuming that the test ought to be formulated here, Part IIA
misapplies it to the facts of this case. The plurality seems to assume that an
unwavering line can be drawn between mere awareness that a
component will find its way into the forum State and purposeful
availment of the forums market. Over the course of its dealings with
Cheng Shin, Asahi has arguably engaged in a higher quantum of conduct
than [t]he placement of a product into the stream of commerce, without
more.... Ibid. Whether or not this conduct rises to the level of purposeful
availment requires a constitutional determination that is affected by the
volume, the value, and the hazardous character of the components. In most
circumstances I would be inclined to conclude that a regular course of
dealing that results in deliveries of over 100,000 units annually over a
period of several years would constitute purposeful availment even
though the item delivered to the forum State was a standard product
marketed throughout the world.
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Civil Procedure Bernstein

J. MCINTYRE MACHINERY, LTD. v. NICASTRO. 131 S. Ct. 2780

(2011)
[Note to students: again, watch who signs on to what]
Justice KENNEDY announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, Justice SCALIA,
and Justice THOMAS join.
Whether a person or entity is subject to the jurisdiction of a state
court despite not having been present in the State either at the time of suit
or at the time of the alleged injury, and despite not having consented to the
exercise of jurisdiction, is a question that arises with great frequency. The
standards for determining when a State [has] jurisdiction over an absent
party have been unclear because of questions left open in Asahi Metal
Industry Co.
Here, the Supreme Court of New Jersey, relying in part on Asahi, held
that New Jerseys courts can exercise jurisdiction over a foreign
manufacturer of a product so long as the manufacturer knows or
reasonably should know that its products are distributed through a
nationwide distribution system that might lead to those products being sold
in any of the fifty states. Applying that test, the court concluded that a
British manufacturer of scrap metal machines was subject to jurisdiction in
New Jersey, even though at no time had it advertised in, sent goods to, or in
any relevant sense targeted the State.
That decision cannot be sustained. As a general rule, the exercise
of judicial power is not lawful unless the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws. Hanson v. Denckla, 357
U.S. 235, 253 (1958). There may be exceptions, say, for instance, in cases
involving an intentional tort. But the general rule is applicable in this
products-liability case, and the so-called stream-of-commerce doctrine
cannot displace it.
I
This case arises from a products-liability suit filed in New Jersey state
court. Robert Nicastro seriously injured his hand while using a metalshearing machine manufactured by J. McIntyre Machinery, Ltd. (J.
McIntyre). The accident occurred in New Jersey, but the machine was
manufactured in England, where J. McIntyre is incorporated and operates.
The question here is whether the New Jersey courts have jurisdiction over J.
McIntyre, notwithstanding the fact that the company at no time either
marketed goods in the State or shipped them there.
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[A]n independent company agreed to sell J. McIntyres machines in
the United States. J. McIntyre itself did not sell its machines to buyers in
this country beyond the U.S. distributor, and there is no allegation that the
distributor was under J. McIntyres control.
J. McIntyre officials attendedconventions for the scrap recycling
industry. The conventions took place in various States, but never in New
Jersey.[N]o more than four machines ended up in New Jersey.[T]he New
Jersey Supreme Court noted that the U.S. distributor structured [its]
advertising and sales efforts in accordance with J. McIntyres direction
and guidance whenever possible, and that at least some of the machines
were sold on consignment to the distributor. In light of these facts, the
New Jersey Supreme Court concluded that New Jersey courts could exercise
jurisdiction over petitioner.
Asahi may be responsible in part for [the New Jersey] courts error
regarding the stream of commerce, and this case presents an opportunity to
provide greater clarity.
II
A court may subject a defendant to judgment only when the defendant
has sufficient contacts with the sovereign such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.
International Shoe. Freeform notions of fundamental fairness divorced
from traditional practice cannot transform a judgment rendered in the
absence of authority into law. As a general rule, the sovereigns exercise of
power requires some act by which the defendant purposefully avails itself
of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws, Hanson, though in some
cases, as with an intentional tort, the defendant might well fall within the
States authority by reason of his attempt to obstruct its laws. In productsliability cases like this one, it is the defendants purposeful availment that
makes jurisdiction consistent with traditional notions of fair play and
substantial justice.
A person may submit to a States authority in a number of ways. There
isexplicit consent [and] presence within a State at the time suit
commences through service of process. Burnham. Citizenship or domicile
or, by analogy, incorporation or principal place of business for corporations
also indicates general submission to a States powers. Goodyear Dunlop
Tires. [T]hese examples reveal circumstancesfrom which it is proper to
infer an intention to benefit from and thus an intention to submit to the laws
of the forum State. Burger King. These examplesallow the State to resolve
both matters that originate within the State and those based on activities
and events elsewhere. By contrast, those who live or operate primarily
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Civil Procedure Bernstein
outside a State have a due process right not to be subjected to judgment in
its courts as a general matter.
There is also a more limited form of submission to a States authority
for disputes that arise out of or are connected with the activities within the
state. International Shoe. Where a defendant purposefully avails itself of
the privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws, Hanson, it submits to the judicial
power of an otherwise foreign sovereign to the extent that power is
exercised in connection with the defendants activities touching on the
State. In other words, submission through contact with and activity directed
at a sovereign may justify specific jurisdiction in a suit arising out of or
related to the defendants contacts with the forum.
The imprecision arising from Asahi, for the most part, results from its
statement of the relation between jurisdiction and the stream of
commerce. The stream of commercerefers to the movement of goods
from manufacturers through distributors to consumers, yet beyond that
descriptive purpose its meaning is far from exact. This Court has stated that
a defendants placing goods into the stream of commerce with the
expectation that they will be purchased by consumers within the forum
State may indicate purposeful availment. World-Wide Volkswagen (finding
that expectation lacking). But that statement merely observes that a
defendant may in an appropriate case be subject to jurisdiction without
entering the forum[,]as where manufacturers or distributors seek to
serve a given States market. The principal inquiry in cases of this sort is
whether the defendants activities manifest an intention to submit to the
power of a sovereign. Sometimes a defendant does so by sending its
goods rather than its agents. The defendants transmission of goods permits
the exercise of jurisdiction only where the defendant can be said to have
targeted the forum; as a general rule, it is not enough that the defendant
might have predicted that its goods will reach the forum State.
In Asahi, an opinion by Justice Brennan for four Justices outlined a
different approach. It discarded the central concept of sovereign authority
in favor of considerations of fairness and foreseeability. As that concurrence
contended, jurisdiction premised on the placement of a product into the
stream of commerce [without more] is consistent with the Due Process
Clause, for [a]s long as a participant in this process is aware that the final
product is being marketed in the forum State, the possibility of a lawsuit
there cannot come as a surprise. In this way, the opinion made
foreseeability the touchstone of jurisdiction.
The standard set forth in Justice Brennans concurrence was rejected
in an opinion written by Justice OConnor; but the relevant part of that
opinion, too, commanded the assent of only four Justices, not a majority of
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the Court. That opinion stated: The substantial connection between the
defendant and the forum State necessary for a finding of minimum contacts
must come about by an action of the defendant purposefully directed
toward the forum State
Since Asahi was decided, the courts have sought to reconcile the
competing opinions. But Justice Brennans concurrenceis inconsistent
with the premises of lawful judicial power. This Courts precedents make
clear that it is the defendants actions, not his expectations, that empower a
States courts to subject him to judgment.
[P]ersonal jurisdiction requires a forum-by-forum, or sovereign-bysovereign, analysis [of] whether a defendant has followed a course of
conduct directed at the society or economy existing within the jurisdiction
of a given sovereign, so that the sovereign has the power to subject the
defendant to judgment concerning that conduct. Personal jurisdiction
restricts judicial power not as a matter of sovereignty, but as a matter of
individual liberty. But whether ajudgment is lawful depends on whether
the sovereign has authority to render it.
Because the United States is a distinct sovereign, a defendant may in
principle be subject to the jurisdiction of the courts of the United States but
not of any particular State. This is consistent with the premises and unique
genius of our Constitution. Ours is a legal system unprecedented in form
and design, establishing two orders of government, each with its own set
of mutual rights and obligations to the people who sustain it and are
governed by it. For jurisdiction, a litigant may have the requisite
relationship with the United States Government but not with the
government of any individual State. That would be an exceptional case,
however. If the defendant is a domestic domiciliary, the courts of its home
State are available and can exercise general jurisdiction. And if another
State were to assert jurisdiction in an inappropriate case, it would upset the
federal balance, which posits that each State has a sovereignty that is not
subject to unlawful intrusion by other States. Furthermore, foreign
corporations will often target or concentrate on particular States,
subjecting them to specific jurisdiction in those forums.
III
Here the question concerns the authority of a New Jersey state
court to exercise jurisdiction, so it is petitioners purposeful contacts with
New Jersey, not with the United States, that alone are relevant. Respondent
has not established that J. McIntyre engaged in conduct purposefully
directed at New Jersey. The[] facts may reveal an intent to serve the U.S.
market, but they do not show that J. McIntyre purposefully availed itself of
the New Jersey market.
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Reversed.
Justice BREYER, with whom Justice ALITO joins, concurring in the
judgment.
.... I
None of our precedents finds that a single isolated sale is sufficient.
Rather, this Courts previous holdings suggest the contrary. There may
well have been other facts that Mr. Nicastro could have demonstrated in
support of jurisdiction. And the dissent considers some of those facts. But
the plaintiff bears the burden of establishing jurisdiction
II
I would not go further. Because the incident at issue in this case does
not implicate modern concerns, and because the factual record leaves many
open questions, this is an unsuitable vehicle for making broad
pronouncements that refashion basic jurisdictional rules.
A
The plurality seems to state strict rules that limit jurisdiction where a
defendant does not inten[d] to submit to the power of a sovereign and
cannot be said to have targeted the forum. But what do those standards
mean when a company targets the world by selling products from its Web
site? And does it matter if, instead of shipping the products directly, a
company consigns the products through an intermediary (say, Amazon.com)
who then receives and fulfills the orders? And what if the company markets
its products through popup advertisements that it knows will be viewed in a
forum? Those issues are totally absent in this case.
Justice GINSBURG, with whom Justice SOTOMAYOR and Justice
KAGAN join, dissenting.
A foreign industrialist seeks to develop a market in the United States
for machines it manufactures. It hopes to derive substantial revenue from
sales it makes to United States purchasers. Where in the United States
buyers reside does not matter to this manufacturer. Its goal is simply to sell
as much as it can, wherever it can. It excludes no region or State from the
market it wishes to reach. But, all things considered, it prefers to avoid
products liability litigation in the United States. To that end, it engages a
U.S. distributor to ship its machines stateside. Has it succeeded in escaping
personal jurisdiction in a State where one of its products is sold and causes
injury or even death to a local user?

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Under this Courts pathmarking precedent in International Shoeand
subsequent decisions, one would expect the answer to be unequivocally,
No. But instead, six Justices of this Court, in divergent opinions, tell us
that the manufacturer has avoided the jurisdiction of our state courts.
Inconceivable as it may have seemed yesterday, the splintered majority
today turn[s] the clock back to the days when a manufacturer, to avoid
being haled into court where a user is injured, need only Pilate-like wash its
hands of a product by having independent distributors market it.
Weintraub, A Map Out of the Personal Jurisdiction Labyrinth.
I
On October 11, 2001, a three-ton metal shearing machine severed
four fingers on Robert Nicastros right hand. Alleging that the machine
wasdefectively made, Nicastro sought compensation from the machines
manufacturer....
[The] owner [of the plant Nicastro worked for] first heard of
[McIntyre UKs] machine while attending an Institute of Scrap Metal
Industries [(ISRI)] convention in Las Vegas in 1994 or 1995, where
[McIntyre UK] was an exhibitor. According to ISRI, more than 3,000
potential buyers attend its annual conventions, [which present a]
comprehensive industry-related shopping experience concentrated in a
single, convenient location.
McIntyre UK representatives attended every ISRI convention from
1990 through 2005. These annual expositions were held in diverse venues
across the United States.McIntyre UKs president, Michael Pownall,
regularly attended ISRI conventions.hoping to reach anyone interested in
the machine from anywhere in the United States. [F]or several years in the
1990s, earnings from sales of McIntyre UK products in the United States
ha[d] been good in comparison to the rest of the world.
From at least 1995 until 2001, McIntyre UK retained an Ohio-based
company, McIntyre Machinery America, Ltd. (McIntyre America), as its
exclusive distributor for the entire United States. Though similarly named,
the two companies were separate and independent entities with no
commonality of ownership or management. In promoting McIntyre UKs
products at conventions and demonstration sites and in trade journal
advertisements, McIntyre America looked to McIntyre UK for direction and
guidance. To achieve McIntyre UKs objective, i.e., to sell [its] machines to
customers throughout the United States, the two companies [acted]
closely in concert with each other.
McIntyre UKs regular attendance and exhibitions at ISRI conventions
was surely a purposeful step to reach customers for its products anywhere
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in the United States. At least as purposeful was McIntyre UKs engagement
of McIntyre America as the conduit for sales of McIntyre UKs machines to
buyers throughout the United States. Given [this], Nicastros suit, I would
hold, has been brought in a forum entirely appropriate for the adjudication
of his claim.On what sensible view of the allocation of adjudicatory
authority could the place of Nicastros injury within the United States be
deemed off limits for his products liability claim against a foreign
manufacturer who targeted the United States (including all the States) as
the territory it sought to develop?
II
[I]n International Shoe itself, and decisions thereafter, the Court
has made plain that legal fictions, notably presence and implied
consent, should be discarded, for they conceal the actual bases on which
jurisdiction rests. [T]he relationship among the defendant, the forum, and
the litigation determines whether due process permits the exercise of
personal jurisdiction over a defendant.
This case is illustrative of marketing arrangements for sales in the
United States common in todays commercial world. A foreign-country
manufacturer engages a U.S. company to promote and distribute the
manufacturers products, not in any particular State, but anywhere and
everywhere in the United States the distributor can attract purchasers.
The modern approach to jurisdiction over corporations and other legal
entities, ushered in by International Shoe, gave prime place to reason and
fairness. Is it not fair and reasonable, given the mode of trading of which
this case is an example, to require the international seller to defend at the
place its products cause injury? On what measure of reason and fairness
can it be considered undue to require McIntyre UK to defend in New Jersey
as an incident of its efforts to develop a market for its industrial machines
anywhere and everywhere in the United States?
McIntyre UK dealt with the United States as a single market. Like
most foreign manufacturers, it was concerned not with the prospect of suit
in State X as opposed to State Y, but rather with its subjection to suit
anywhere in the United States.

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