Is the Foreign Supplier “All In”? Service and Personal Jurisdiction in a Global Economy Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO (816)

Is the Foreign Supplier “All In”? Personal Jurisdiction in 30 Minutes Kansas Personal Jurisdiction Practical Personal Jurisdiction

PERSONAL JURISDICTION Everything you learned in law school and more in just 30 minutes

Words, Phrases and Concepts Territorial limits Traditional notions of fair play and substantial justice Minimum contacts Estimate of the inconveniences Purposeful availment General v. Specific Stream of commerce plus (whatever that means) Personal Jurisdiction in 30 Minutes

14 th Amendment (1868) “… nor shall any State deprive any person of life, liberty, or property without due process of law.” Pennoyer (1877) Pennoyer v. Neff, 95 U.S. 714 (1877) “The authority of every tribunal is necessarily restricted by the territorial limits of the State …” Personal jurisdiction requires personal service within the territorial limits of the state of the tribunal. Personal Jurisdiction in 30 Minutes

International Shoe (1945) Internat’l Shoe Co. v. Washington, 326 U.S. 310 (1945) Minimum contacts that do not offend traditional notions of fair play and substantial justice Relevance of “an estimate of the inconveniences” Contrasting general and specific jurisdiction General – continuous corporate operations sufficiently substantial – permit jurisdiction unrelated to the in-State activities Specific – minimum contacts with forum – continuous and systematic – give rise to the liabilities sued upon Personal Jurisdiction in 30 Minutes

Hanson v. Denkla (1958) Hanson v. Denkla, 357 U.S. 235 (1958) Restrictions on jurisdiction are “a consequence of territorial limitations on the power of the … States” “[A]n act by which the defendant purposefully avails itself of the privilege of conducting activities …” Rejects “center of gravity” argument Personal Jurisdiction in 30 Minutes

World-Wide Volkswagen (1980) World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980) Factors to be considered – Burden on the defendant – Forum’s interest in adjudicating the case – Plaintiff’s interest in convenient and efficient relief – Interstate judicial system’s interest – States’ shared interest in furthering social policies Foreseeability related to defendant’s conduct and connection to the forum state, not related to a product fortuitously ending up in the forum state. Personal Jurisdiction in 30 Minutes

Ins. Corp. of Ireland (1982) Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) Downplays the importance of federalism in personal jurisdiction jurisprudence Procedural Issues – Discovery on personal jurisdiction – Discovery sanctions—just and related to the claim at issue Burger King (1985) Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) Minimum contacts in the context of federal cases Importance of purposeful availment Downplays defendant’s inconvenience Suggests accommodations – Choice of law – Change of venue for defendants with “lesser minimum contacts” Personal Jurisdiction in 30 Minutes

Asahi Metal Industry (1987) Asahi Metal Ind. Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102 (1987) Unanimous that the exercise of personal jurisdiction “would offend the traditional notions of fair play and substantial justice.” 4-4 split on the “stream of commerce theory” Justice O’Connor: Purposeful availment requires more than just putting a product in the stream of commerce Justice Brennan: Putting a product in the stream of commerce plus knowledge that the product is marketed in the forum state is sufficient. Personal Jurisdiction in 30 Minutes

Goodyear (2011) Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) Bus accident in France Tires manufactured and sold in Europe American citizens killed Suit filed in North Carolina European subsidiaries of American parent corporation J. McIntyre Mach. (2011) J. McIntyre Machinery v. Nicastro, 564 U.S. 873 (2011) Hand injury in New Jersey Machine manufactured in England Sold to independent US distributor No input on later distribution Four machines in New Jersey “Opportunity for greater clarity” Decision Personal Jurisdiction in 30 Minutes Post-Asahi Metal

KANSAS PERSONAL JURISDICTION State and Federal

State Long arm statute K.S.A (b) Merriman v. Crompton Corp., 282 Kan. 433 (2006) – Price-fixing, conspiracy case – Falls within long arm jurisdiction – Application for authority to do business is consent – Written consent to jurisdiction is consistent with DP – Conspiracy outside the state with effects reasonably expected to reach Kansas consumers supports exercise of personal jurisdiction Personal Jurisdiction in Kansas

Federal OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086 (1998) Insurance case Long arm statute satisfied Due Process analysis – Minimum contacts—purposeful availment/arising out of – Reasonableness Burden on the defendant Forum state’s interest Plaintiff’s interest Interstate judicial system’s interest States interest in furthering fundamental social policies Personal Jurisdiction in Kansas

Federal Monge v. RG Petro-Machinery (Group) Co., 701 F.3d 598 (10 th Cir. 2012) Injury on a rig used to repair oil wells Manufactured in China Possession taken in China Shipping label to Liberal, Kansas Injury and suit in Oklahoma Analysis – Specific jurisdiction – General jurisdiction Personal Jurisdiction in Kansas

PRACTICAL PERSONAL JURISDICTION Before and during litigation

Serving the foreign party abroad The Hague Convention – Must go through foreign country’s central authority – Central authority can deny the request for service – Central authority can require translation Allows for delivery to addressee who voluntarily accepts it Practical Personal Jurisdiction

Planning for Problems—the Domestic Entity Who are you going to deal with? Where are the negotiations going to be held? What’s in your contract? – Voluntary acceptance of service – Designated agents for service – Choice of forum clauses – Choice of law requirements – Insurance requirements – Defense and indemnity agreements Practical Personal Jurisdiction

Questions for your foreign litigation client Did plaintiff get service right? Are the contacts sufficient to sustain general jurisdiction? Are the contacts connected to the cause of action? Which type of stream of commerce state are you in? File your motion to dismiss early Make sure your motion to dismiss is complete Affidavit or statement made under penalty of perjury? Expect discovery on jurisdiction Argue discovery should be limited while motion is pending Practical Personal Jurisdiction

Questions? Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO (816)