The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES NIXON, III, )
)
Plaintiff, )
)
v. ) Case No. 3:20-cv-01103
) Judge Aleta A. Trauger
BEVINI, S.R.L. and SACMI IMOLA S.C., )
)
Defendants. )
MEMORANDUM
Before the court are the following motions: (1) defendant Bevini, S.r.l.’s Motion to Dismiss
for Lack of Personal Jurisdiction (Doc. No. 38); (2) defendant Bevini, S.r.l.’s Motion to Dismiss
[co-defendant] Sacmi Imola S.C.’s Crossclaim for Lack of Personal Jurisdiction (Doc. No. 43);
and (3) plaintiff James Nixon, III’s Motion to Stay Adjudication of Bevini, S.r.l.’s Rule 12(b)(2)
Motion to Dismiss and to Allow the Parties to Conduct Discovery Relating to Personal Jurisdiction
(Doc. No. 48).
Because the court finds, as set forth herein, that the plaintiff has not established a prima
facie basis for the exercise of personal jurisdiction over the defendant, the court will grant both of
Bevini’s Motions to Dismiss. Because there are no material factual disputes and discovery would
be futile, the court will deny the plaintiff’s Motion to Stay.
I. FACTS AND PROCEDURAL HISTORY
James Nixon initiated this lawsuit on December 23, 2020 by filing suit against Bevini S.r.l.
(“Bevini”) only. He filed the Amended Complaint (Doc. No. 13) on March 11, 2021, adding Sacmi
Imola S.C. (“Sacmi”) as a defendant.
As set forth in the Amended Complaint, Nixon is a citizen and resident of Dickson, Dickson
County, Tennessee and was formerly employed by non-party Dal-Tile Corporation (“Dal-Tile”)
in Dickson. Both Bevini and Sacmi are Italian corporations with their principal places of business
in Italy. (Doc. No. 13 ¶¶ 1, 2, 4.) Neither Bevini nor Sacmi is authorized to do business in
Tennessee.
At all relevant times, Bevini was in the business of designing, manufacturing, assembling,
and selling machinery, including the Bevini, S.r.l. Hopper, Model TRM, Serial Number 31615M03
(“Hopper”) that is the subject of this lawsuit. (Id. ¶ 9.) Sacmi, at all relevant times, was in the
business of “supplying, distributing, assembling, and/or selling machinery such as the Hopper to
businesses in the United States, including Dal-Tile Corporation.” (Id. ¶ 10.) In other words, Dal-
Tile purchased the Hopper from Sacmi. More specifically, in October 2014, Dal-Tile entered into
an agreement with Sacmi, pursuant to which Sacmi “would supply and assemble the Hopper at
Dal-Tile’s Dickson, Tennessee location.” (Id. ¶ 14.)
On March 21, 2020, during the course and scope of his employment with Dal-Tile, plaintiff
James Nixon was operating the Hopper that was “supplied by” Sacmi and “designed,
manufactured, and/or sold by” Bevini. (Id. ¶ 17.) Clay is loaded into the Hopper with a front-end
loader. (Id. ¶ 11.) “There is a rotating tiller near the bottom of the [H]opper,” which “break[s]
down clay into smaller pieces [that] are then conveyed to various parts of the facility.” Id. ¶ 12.)
While Nixon was operating the Hopper, “[t]he clay caused the tiller to clog up and stop rotating.”
(Id. ¶ 17.) Nixon used a pipe wrench to try to unclog the tiller. When the “jam broke loose and the
shaft began turning,” the pipe wrench struck Nixon in the abdomen and dominant hand, causing
severe and permanent injuries. (Id. ¶¶ 17, 21–22.)
The plaintiff alleges that his actions in attempting to unclog the tiller were foreseeable, but
the Hopper did not “contain an appropriate emergency shut-off device to immediately stop the
tiller and the hopper’s motion” under circumstances such as those leading to the plaintiff’s injuries
and that the tiller and hopper were not “appropriately guarded.” (Id. ¶¶ 15–16.) The plaintiff asserts
that the defendants failed to warn of the hazard created by the lack of an automatic shutoff or
guarding device, that the hazard created by the absence of an automatic shutoff or guarding device
was not obvious or apparent to the ordinary user, and that Nixon’s injuries were caused by the
defect in the Hopper, namely its failure to have an automatic shutoff or a guarding device. (Id. ¶¶
19–20, 22.)
Based on these allegations, the plaintiff asserts claims against both defendants under the
Tennessee Products Liability Act for (1) strict liability; (2) negligence; (3) failure to warn; and (4)
breach of warranty. He seeks to recover damages in excess of $10,000,000, plus interest and all
expenses and costs allowed by law.
Following the filing of the Amended Complaint, defendant Sacmi filed an Answer,
asserting various affirmative defenses and denying liability, and a Crossclaim against Bevini for
indemnification. Sacmi does not contest the court’s exercise of personal jurisdiction over it. Sacmi
alleges in the Crossclaim that Sacmi contracted with Bevini to “sell and supply the machinery
described . . . in Plaintiff’s Amended Complaint to third parties, including to Dal-Tile
Corporation.” (Doc. No. 37, Crossclaim ¶ 2.) It further states that it “was an independent contractor
and seller of Bevini’s products.” (Id. ¶ 6.)
In lieu of a responsive pleading, Bevini filed its Rule 12(b)(2) Motion to Dismiss the
Complaint and a separate Motion to Dismiss Crossclaim, asserting in both that this court lacks
personal jurisdiction over it. Bevini’s motions are supported by the Affidavits of its Italian legal
counsel and CEO. The plaintiff filed his Response in opposition to the Motion to Dismiss the
Complaint on the same day as a Motion to Stay, in which he also requests that the parties be
permitted to conduct discovery related to jurisdiction and to present their findings at an evidentiary
hearing. With his filings, the plaintiff submitted screenshots of Bevini’s website and his proposed
discovery. Sacmi filed a Response to the Motion to Dismiss Crossclaim, in which it expressly
recognizes that its ability to bring a crossclaim against Bevini in this court is premised on the
plaintiff’s ability to establish this court’s personal jurisdiction over Bevini for purposes of the
plaintiff’s claims against it. (Doc. No. 51, at 1.) Bevini filed a Combined Reply in support of its
own Motion to Dismiss and Response in opposition to the plaintiff’s Motion to Stay, along with a
second set of Affidavits from its Italian legal counsel and CEO. Sacmi filed a Response to the
plaintiff’s Motion to Stay, in which it does not espouse a position either for or against the motion,
but it submits with its Response “transportation and purchase order documentation relevant to the
underlying transaction in this case to assist the Court in its determination” of the pending motions.
(Doc. No. 54, at 2.) The plaintiff filed a Combined Reply to both defendants’ Responses to his
Motion to Stay, and Bevini, with the court’s permission, filed a Surreply, along with a third set of
Affidavits from its Italian legal counsel and its CEO.
II. LEGAL STANDARD
A. Rule 12(b)(2)
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes a defendant to file a
motion to dismiss for lack of personal jurisdiction. Although the defendant is the moving party on
such a motion, the plaintiff, as the party who invokes the court’s jurisdiction, bears the burden of
establishing personal jurisdiction. Air Prods. & Controls, Inc. v. Safetech Int’1, Inc., 503 F.3d 544,
549 (6th Cir. 2007). On a motion to dismiss for lack of personal jurisdiction, district courts have
discretion whether to decide the motion on affidavits alone, permit discovery on the issue, or
conduct an evidentiary hearing to resolve factual questions. See, Inc. v. Imago Eyewear Pty., Ltd.,
167 F. App’x 518, 520 (6th Cir. 2006) (citing Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir. 1991)). The plaintiff’s burden of proof is “relatively slight where . . . the . . . court rules without
conducting an evidentiary hearing.” MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894, 899 (6th
Cir. 2017) (internal quotation marks and citation omitted).
“To defeat dismissal in this context, [the plaintiff] need make only a prima facie showing
that personal jurisdiction exists.” Id. To determine whether the plaintiff has made such a showing,
the court considers the pleadings and any affidavits submitted by the parties in the light most
favorable to the plaintiff. Any conflicts between facts contained in the parties’ affidavits must be
resolved in the plaintiff’s favor. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th
Cir. 2002). Dismissal under Rule 12(b)(2) is appropriate only if the specific facts alleged by
plaintiff, taken as a whole, fail to state a prima facie case for personal jurisdiction. Bridgeport
Music, Inc. v. Still N The Water Publ’g., 327 F.3d 472, 478 (6th Cir. 2003).
B. Personal Jurisdiction
“The Due Process Clause of the Fourteenth Amendment constrains a State’s authority to
bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore, 571 U.S. 277, 283
(2014). Thus, in order for this court to have personal jurisdiction over a defendant, the plaintiff
must show that the defendant has (or had) sufficient minimum contacts with Tennessee such that
“the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Minimum contacts exist where
a defendant purposefully avails itself of the privilege of conducting activities within the forum
state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
“Personal jurisdiction may be found either generally or specifically.” Miller v. AXA
Winterthur Ins. Co., 694 F.3d 675, 678 (6th Cir. 2012) (quoting Air Prods., 503 F.3d at 549–50).
“A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations
to hear any and all claims against them when their affiliations with the State are so ‘continuous
and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). “Specific jurisdiction, on the other hand,
grants jurisdiction only to the extent that a claim arises out of or relates to a defendant’s contacts
in the forum state.” Id.
III. DISCUSSION
Bevini, S.R.L. (“Bevini”) argues that its contacts with Tennessee give rise to neither
general nor specific jurisdiction. The plaintiff concedes that general jurisdiction does not apply.
(See Doc. No. 47, at 5 (“Here, only specific jurisdiction is at issue.”).) The court, therefore, will
focus its analysis on the question of specific jurisdiction.
A. Specific Jurisdiction
“A federal court’s exercise of personal jurisdiction in a diversity of citizenship case must
be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due
Process Clause of the Fourteenth Amendment.” Neogen Corp., 282 F.3d at 887. Tennessee’s long-
arm statute provides the relevant governing state statute, and that statute has been interpreted by
state and federal courts as “coterminous with the limits on personal jurisdiction imposed” by the
Due Process Clause of the United States Constitution. Intera Corp. v. Henderson, 428 F.3d 605,
616 (6th Cir. 2005) (quoting Payne v. Motorists’ Mut. Ins. Cos., 4 F.3d 452, 455 (6th Cir. 1993));
see also Crouch Ry. Consulting, LLC v. LS Energy Fabrication, LLC, 610 S.W.3d 460, 471 (Tenn.
2020) (“We have recognized that Tennessee’s long-arm statutes expand the jurisdictional reach of
Tennessee courts ‘as far as constitutionally permissible.’” (quoting First Cmty. Bank, N.A. v. First
Tenn. Bank, N.A., 489 S.W.3d 369, 384 (Tenn. 2015)). Because “the jurisdictional limits of
Tennessee law and of federal constitutional law of due process are identical,” “the two inquiries
merge and the court need only determine whether the assertion of personal jurisdiction . . . violates
constitutional due process.” Intera Corp., 428 F.3d at 616 (citations and internal quotation marks
omitted).
Specific jurisdiction deals with a defendant’s contacts with the forum state relating to the
claims at issue. When determining whether a district court’s exercise of personal jurisdiction
would offend due process, “[t]he relevant inquiry is whether the facts of the case demonstrate that
the non-resident defendant possesses such minimum contacts with the forum state that the exercise
of jurisdiction would comport with ‘traditional notions of fair play and substantial justice.’”
Theunissen , 935 F.2d at 1459 (quoting Int’l Shoe 326 U.S. at 316). The Supreme Court recently
described the parameters of specific jurisdiction, as follows:
Specific jurisdiction . . . covers defendants less intimately connected with a State,
but only as to a narrower class of claims. The contacts needed for this kind of
jurisdiction often go by the name “purposeful availment.” The defendant, we have
said, must take some act by which [it] purposefully avails itself of the privilege of
conducting activities within the forum State. The contacts must be the defendant’s
own choice and not random, isolated, or fortuitous. They must show that the
defendant deliberately reached out beyond its home—by, for example, exploi[ting]
a market in the forum State or entering a contractual relationship centered there.
Yet even then—because the defendant is not “at home”—the forum State may
exercise jurisdiction in only certain cases. The plaintiff’s claims, we have often
stated, must arise out of or relate to the defendant’s contacts with the forum. Or put
just a bit differently, there must be an affiliation between the forum and the
underlying controversy, principally, [an] activity or an occurrence that takes place
in the forum State and is therefore subject to the State's regulation.
Ford Motor Co. v. Mont. Eighth Judicial District Court, 141 S. Ct. 1017, 1024–25 (2021) (internal
quotation marks and citations omitted).
The Sixth Circuit long ago articulated a similar test to guide the determination of whether
specific jurisdiction exists:
First, the defendant must purposefully avail himself of the privilege of acting in the
forum state or causing a consequence in the forum state. Second, the cause of action
must arise from the defendant’s activities there. Finally, the acts of the defendant
or consequences caused by the defendant must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the
defendant reasonable.
Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d 499, 505 (6th Cir. 2014) (quoting S. Mach.
Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)). While all three elements must be
satisfied, the “purposeful availment” element is the “sine qua non for in personam jurisdiction.”
Air Prods., 503 F.3d at 550 (quoting S. Mach. Co., 401 F.2d at 381–82).
B. Whether the Plaintiff Can Establish Bevini’s Purposeful Availment
Under the test articulated by the Supreme Court and the Sixth Circuit, the plaintiff must
establish that Bevini “acted or caused a consequence” in Tennessee such that it “invoked the
benefits and protections of [Tennessee] law” and, thus, could have “reasonably anticipate[d] being
haled into court there.” MAG IAS Holdings, 854 F.3d at 900 (citations omitted). “[P]urposeful
availment exists if the defendant created a ‘substantial connection’ with the forum state by
engaging in ‘significant activities within [the] State,’ or by creating ‘continuing obligations’ to
residents in that state.” Id. (quoting Burger King, 471 U.S. at 475–76). The focus of the inquiry is
on the “defendant’s contacts with the forum State itself” rather than with the plaintiff or other
parties. Id. (quoting Walden, 571 U.S. at 285). Thus, “mere injury to a forum resident is not a
sufficient connection to the forum.” Bulso v. O’Shea, No. 3-16-0040, 2017 WL 563940, at *2
(M.D. Tenn. Feb. 13, 2017), aff’d, 730 F. App’x 347 (6th Cir. 2018). Rather, “an injury is
jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the
forum State.” Walden, 571 U.S. at 290; see also Bridgeport Music, 327 F.3d at 478–79 (“The
emphasis in the purposeful availment inquiry is whether the defendant has engaged in ‘some overt
actions connecting the defendant with the forum state.’” (quoting Dean v. Motel 6 Operating L.P.,
134 F.3d 1269, 1274 (6th Cir. 1998)) (emphasis added)).
The allegations in the Amended Complaint, standing alone, are clearly inadequate to state
a prima facie case for personal jurisdiction over Bevini. They do not show that Bevini engaged in
any activities within the state of Tennessee, created continuing obligations to residents of the state,
or, indeed, formed any contact with the state. The sole connection to the state evident from the
Amended Complaint is that Bevini, an Italian corporation, sold the Hopper in Italy to Sacmi,
another Italian company. To be sure, the Amended Complaint also alleges that Sacmi entered into
a contract with Dal-Tile in Tennessee to sell and install the product in Tennessee, but it does not
allege facts suggesting that Bevini had any involvement in that transaction. The allegations in the
Amended Complaint do not establish that Bevini engaged in any “overt action[] connecting the
defendant with the forum state.” Bridgeport Music, 327 F.3d at 478–79.
The plaintiff insists that Sacmi “alleges that it contracted with Bevini to have [its] product
sold to a Dal-Tile facility in the state of Tennessee.” (Doc. No. 47, at 7 (citing Doc. No. 37,
Crossclaim ¶ 3).)1 Even assuming that the allegations in the Crossclaim are relevant to the question
of whether the plaintiff has made a prima facie showing that personal jurisdiction exists, Sacmi
actually alleges, somewhat ambiguously, that it contracted with Bevini to “sell and supply the
machinery at issue . . . to third parties, including to Dal-Tile Corporation.” (Crossclaim ¶ 3.)
Because it is undisputed that Bevini manufactured the Hopper and sold it to Sacmi and that Sacmi
sold and supplied the Hopper to Dal-Tile, the court understands Sacmi to be stating only that it
bought the machine from Bevini in order to sell it, or for the purpose of selling it, to a third party.
It may reasonably be inferred from Sacmi’s allegation that Bevini knew that Sacmi would sell the
1 The plaintiff apparently intended to cite paragraph 2 of the Crossclaim. In addition, the
plaintiff asserts that Bevini “knowingly benefited from that sale,” citing paragraphs 8–10 of the
Crossclaim. (Doc. No. 47, at 7.) The Crossclaim, however, contains only seven paragraphs. (See
Doc. No. 37, at 10–11.)
Hopper to a third party, and perhaps even to Dal-Tile in Tennessee. The mere fact that Bevini sold
the product to another Italian company, knowing that it would sell it to a third party located in
Tennessee, is not sufficient to establish Bevini’s “purposeful availment” of the opportunity to
conduct business in Tennessee, however.
As relevant to this case, the Sixth Circuit has adopted the “stream of commerce ‘plus’
approach,” under which “[t]he placement of a product into the stream of commerce, without more,
is not an act of the defendant purposefully directed toward the forum State.” Bridgeport Music,
327 F.3d at 479 (quoting Asahi Metal Indus. Co., Ltd. v. Superior Court, 480 U.S. 102 (1987)
(O’Connor, J.) (plurality op.)). Under this approach, “for a defendant to purposely avail himself of
the privilege of acting within a forum state, he must do more than merely place a product into the
stream of commerce.” Parker v. Winwood, 938 F.3d 833, 840 (6th Cir. 2019) (quoting Bridgeport,
327 F.3d at 479). The plurality opinion in Asahi provides examples of “[a]dditional conduct of the
defendant” that could serve to create jurisdiction, including “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.” Asahi, 480 U.S. at 112.
The plaintiff does not allege or point to any facts suggesting that Bevini designed the
product for the American market, advertises in Tennessee or anywhere else in the United States,
has contact with end purchasers of its product in the United States, or markets its products through
a third-party distributor who functions as a sales agent in Tennessee or anywhere else in the United
States.2 In the absence of these types of contacts, the plaintiff points to Bevini’s website, which
2 In the Affidavits submitted by Bevini in support of its Motion to Dismiss, its CEO affirms
that Bevini did not contract with Dal-Tile, does not advertise or solicit business in Tennessee, has
had no direct contact with Tennessee, has no United States sales agents, has not engaged Sacmi as
provides a portal through which users can submit inquiries about Bevini’s products and about the
purchase of spare parts. In addition, with regard to the spare parts, the website states (apparently
as translated from the Italian by Google3): “Bevini is authorized to supply spare parts for all types
of material, commercial and custom, they are original and MADE IN ITALY and are packed
according to FAO ISPM-15 standards for fumigation allowing compliance with all the regulations
in the world.” (Doc. No. 47, at 8 (citing Doc. No. 47-2, at 2 (screenshot of website page)).) The
plaintiff also points to Bevini’s website page proclaiming its presence in “over 90 countries
worldwide.” (See Doc. No. 47-3, at 3.) He argues that, [i]f Bevini can advertise and sell spare parts
anywhere in the world, and it can ensure compliance with the applicable regulatory framework
anywhere in the world, it can reasonably anticipate the malfunction of one of its products anywhere
in the world, including in Tennessee[.]” (Doc. No. 47, at 8 (emphasis in original).)
The Sixth Circuit has acknowledged that the defendant’s operation of a website can
establish its purposeful availment of the privilege of acting in a forum state. The relevant question
is whether “the website is interactive to a degree that reveals specifically intended interaction with
residents of the state.’” Bird v. Parsons, 289 F.3d 865, 874 (6th Cir. 2002) (quoting Neogen Corp.,
282 F.3d at 890). The court has explained that there are “three levels of interactivity of websites,
a sales agent or distributor, and never shipped any product directly to Dal-Tile. (Doc. No. 39-1,
Lenzi Aff. ¶¶ 10, 13, 15; Doc. No. 53-1, Second Lenzi Aff. ¶¶ 5, 7; Doc. No. 62-1, Third Lenzi
Aff. ¶ 9.) These allegations do not contradict any facts plausibly alleged by the plaintiff.
Consideration of Lenzi’s Affidavits, therefore, would not give rise to a need for a hearing to resolve
factual disputes. The court does not find it necessary to rely on these Affidavits, however, as the
facts as alleged by the plaintiff are simply insufficient to establish purposeful availment.
3 The plaintiff also asserts that Bevini’s website, though in Italian, “is easily translated to
English with a single mouse click.” (Doc. No. 47, at 2.) While the question of whether the website
is posted in English, Italian, or both has little or no relevance to the purposeful availment question,
the plaintiff points to no evidence that Bevini itself had any input into or control over the translation
of its website into English. In addition, Lenzi avers that Bevini hosts a website in Italian and that
“[a]ny translation services are only offered through a third party like Google.” (Doc. No. 53-1,
Second Lenzi Aff. ¶ 4.)
including: (1) passive sites that only offer information for the user to access; (2) active sites that
clearly transact business and/or form contracts; and (3) hybrid or interactive sites that allow users
to exchange information with the host computer.” See, Inc. v. Imago Eyewear Pty, Ltd., 167 F.
App’x 518, 522 (6th Cir. 2006) (internal quotation marks and citation omitted). In Bird, the court
found that, “by maintaining a website on which Ohio residents can register domain names and by
allegedly accepting the business of 4,666 Ohio residents,” the defendants reached out to Ohio and
purposefully availed themselves of the privilege of conducting business there. Bird, 289 F.3d at
874. Similarly, in Neogen, the defendant was found to have purposefully availed itself of the
privilege of doing business in Michigan by granting its clients passwords to access its services on
its website and by welcoming the business of Michigan customers on a regular basis. Neogen, 282
F.3d at 890.
“[A] website is passive if it simply posts product and contact information.” See, Inc., 167
F. App’x at 522 (citing Neogen, 292 F.3d at 890). Based on that definition, Bevini’s website is not
purely passive, as it allows users to fill out an information request form relating to spare parts,
providing their contact information and the details of their request. (See Doc. No. 47-2, at 2.) At
the same time, Bevini’s website clearly was not interactive to the same degree as those of the
defendants in Bird and Neogen. The screenshots supplied by the plaintiff make it clear that the
website does not target Tennessee; nor does the website allow purchases of machinery or spare
parts directly from the website. With respect to the website’s reference to compliance with
worldwide regulations, it is clear from the context that Bevini is talking about packaging
regulations, not manufacturing regulations. Bevini’s website is not “interactive to a degree that
reveals specifically intended interaction with residents of the state,” Bird, 289 F.3d at 874; Neogen,
282 F.3d at 890. Bevini’s maintenance of a website that simply allows individuals to request
additional information is “not an act . . . purposefully directed toward the forum State.” Bridgeport
Music, 327 F.3d at 479.
The plaintiff also argues that a “foreign manufacturer cannot use an ‘independent
distributor’ to insulate [itself] from litigation in the forum state” (Doc. No. 47, at 6, 7), citing Tobin
v. Astra Pharmaceutical Products, Inc., 993 F.2d 528 (6th Cir. 1993), and Mott v. Schelling & Co.,
No. 91-1540, 1992 WL 116014, at *6 (6th Cir. May 29, 1992). In Tobin, the Sixth Circuit reversed
the district court’s dismissal, for lack of personal jurisdiction, of the foreign manufacturer of the
drug that caused the plaintiff’s injuries. There, the court found that the manufacturer more than
satisfied Asahi’s “stream of commerce ‘plus’” test, where the drug manufacturer, among other
things, (1) submitted to the FDA a “new Drug Application” to obtain approval to sell the drug in
the United States; (2) came to the United States and conducted clinical studies to further the FDA’s
approval; (3) sought out and negotiated a licensing agreement with co-defendant Astra
Pharmaceuticals, pursuant to which Astra would distribute the drug throughout the United States;
and (4) required Astra to continue to consult with it in its dealings with FDA. Tobin, 993 F.2d at
543. The court found that these efforts directed toward the United States established “‘something
more’ than mere awareness that the stream of commerce will sweep the product into the forum
state,” as they showed that the defendant “made a deliberate decision to market [its drug] in all 50
states, including Kentucky, the forum state.” Id. (quoting Asahi, 480 U.S. at 111–12).
In Mott, the Sixth Circuit affirmed the exercise of personal jurisdiction over the foreign
manufacturer of the product that caused the plaintiff’s injury. There, the court found it relevant
that the defendant maintained an exclusive American sales agent that specialized in selling to the
American market and that the defendant “actively cultivated” the American market over the course
of more than a decade. Among other things, the defendant designed its product to meet American
standards; its employees had come to the United States to sell its machines; the defendant
distributed brochures in the United States; most of the machines it sold in the United States were
installed by “fitters” employed by the defendant; and employees of the defendant came to United
States to inspect, test, and adjust the machines. 1992 WL 116014, at *5. In addition, the
manufacturer did not ship its product to its distributor until the distributor had actually made a sale,
and, at that point, the manufacturer shipped a machine directly to the distributor in the United
States. Finally, an employee of the manufacturer accompanied the machine at issue in that case to
install it at the plaintiff’s employer’s plant and to demonstrate its use. The court found that all of
the defendant’s actions together established the requisite “minimum contacts” with the forum state
and the defendant’s purposeful availment of the opportunity to conduct business there. Id. at *6.
Neither Tobin nor Mott supports a finding of jurisdiction in this case. Here, Sacmi admits
that it “does not have, nor has it ever had, a specific distribution agreement or other similar contract
with Bevini relevant to the underlying transaction at issue in this case.” (Doc. No. 54, at 2.) There
is no suggestion that Bevini has a relationship with any U.S.-based sales agent, that it does business
in Tennessee, or that it directs business toward Tennessee.
The only fact to which the plaintiff can point in support of personal jurisdiction is that
Bevini may have known when it sold the Hopper to Sacmi that the product was destined for
Tennessee. Assuming that it did, that single fact is insufficient to warrant the exercise of personal
jurisdiction over Bevini. There is no suggestion that Bevini was involved in Sacmi’s contact with
Dal-Tile or the sale itself, encouraged or facilitated it, or, indeed, had any involvement in it
whatsoever. In sum, Bevini did not engage in any “overt action[] connecting [it] with the forum
state.” Bridgeport Music, 327 F.3d at 478. The plaintiff has not shown that Bevini purposefully
availed itself of the privilege of conducting business in Tennessee.
As purposeful availment is the sine qua non of personal jurisdiction, the plaintiff’s inability
to establish this factor is dispositive. Further, the fact that the Bevini has no contacts with
Tennessee means that the plaintiff’s claim does not arise from or relate to Bevini’s contacts with
Tennessee and that it would be unreasonable for the court to exercise jurisdiction over Bevini.
With regard to the plaintiff’s arguments regarding fairness and Tennessee’s interest in resolving
this dispute, the court notes that the Tennessee Products Liability Act specifically contemplates
situations in which a manufacturer will not be amenable to personal jurisdiction, and the statute
authorizes claims against sellers instead in that situation. See Tenn. Code Ann. § 29-28-106(4)
(“No product liability action . . . shall be commenced or maintained against any seller, other than
the manufacturer, unless . . . [t]he manufacturer or distributor of the product or part in question is
not subject to service of process in this state and the long-arm statutes of Tennessee do not serve
as the basis for obtaining service of process.”). Co-defendant Sacmi, the seller of the product that
allegedly injured the plaintiff, does not dispute service or personal jurisdiction in this case. Clearly,
it would be more convenient, especially for Sacmi, for the plaintiff to be able to resolve his claims
against both defendants in one proceeding, but convenience does not trump due process. The
plaintiff is not deprived of a remedy in this case, and no other extraordinary factors outweigh the
plain fact that Bevini did not purposefully avail itself of the privilege of conducting business in
Tennessee.
C. The Motion to Dismiss Crossclaim
Sacmi’s Response to the Motion to Dismiss the Crossclaim concedes that the exercise of
jurisdiction over Bevini by this court, for purposes of the Crossclaim, is entirely dependent upon
whether the plaintiff establishes that the court may exercise jurisdiction over Bevini for purposes
of the claims in the Amended Complaint. (Doc. No. 51, at 1.) Because the court finds that it lacks
personal jurisdiction over Bevini, the Motion to Dismiss the Crossclaim will also be granted.
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IV. CONCLUSION
For the reasons set forth herein, both of the defendant’s Motions to Dismiss (Doc. Nos. 38,
43) will be granted, and the plaintiff's and Sacmi’s claims against Bevini will be dismissed without
prejudice. Because the plaintiff has failed to establish a prima facie basis for the exercise of
Jurisdiction, the court will deny the plaintiff’s motion to stay the case while the parties conduct
Jurisdictional discovery (Doc. No. 48).
An appropriate Order is filed herewith.
United States District Judge