# Gould, Inc. v. Mitsui Mining & Smelting Co. > Court of Appeals for the Sixth Circuit · October 22, 1991 · 947 F.2d 218 URL: https://www.frixlaw.com/law-library/cases/8995206 ## Case - **Full name:** GOULD, INC. v. MITSUI MINING & SMELTING COMPANY, Japan Miyakoshi Machine Tools Company, Ltd., Japan, Pechiney Ugine Kuhlmann, France Trefimetaux, France - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** October 22, 1991 - **Citations:** 947 F.2d 218; 1991 WL 209928 - **Precedential status:** Published - **Opinion:** Dissent by Kennedy - **Judges:** Kennedy, Merritt, Norris - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8995206 ## Opinion text KENNEDY, Circuit Judge, dissenting. The acts relied upon by the majority are I believe either unsupported by the record, contrary to the magistrate judge’s factual findings, or too attenuated from the acts on which plaintiff’s claim is based to establish jurisdiction under the FSIA. The majority correctly states that “[plaintiff] needs to convince the court that it is not relying upon one episode for jurisdiction and another one for its claim.” Majority at 221. The majority, I believe, fails in its effort to avoid this pitfall. Initially, it should be noted what the majority does not rely upon to establish jurisdiction. The magistrate judge found that, although Protecna received information originally supplied by Danvers, there was no evidence that Protecna used this information in its design and construction of the Eurocel plant. Indeed, the magistrate judge specifically found otherwise stating that “[t]here is no evidence that Protecna and Eurocel incorporated into the plant any technology received by them from any source other than Mitsui.” To be sure, plaintiff did stipulate for purposes of the motion being reviewed that Gould technology was used to construct the Eurocel plant. The impact of this stipulation is neutralized when read in light of the magistrate judge’s findings. Accepting for the purpose of the motion that Gould technology found its way into the Eurocel plant, Protecna undertook only to show that its use there was not a product of the French defendants’ dealings with Danver in the United States. Under the magistrate judge’s findings, the only route through which Gould technology could have been incorporated into the Eurocel plant was through its dealings with Mitsui. Regarding these dealings, the magistrate judge found that the French defendants had reasonable cause to believe that Mitsui was providing untainted technology to the joint venture. In order to establish jurisdiction, the majority relies upon evidence that the French defendants used Gould technology obtained directly from the Danver transaction. The majority selects those facts which allow it to conclude that “one could infer that information concerning plaintiff’s technology, which defendants obtained directly from Danver, was used in the Eurocel plant project, independent of any use which may have been made of those trade secrets by Mitsui.” Majority at 222. Such an inference, however, contradicts the specific findings of the magistrate judge that no Dan-ver information was used in the design or construction of the Eurocel plant. Neither the District Court nor the majority considered the magistrate judge’s specific findings clearly erroneous. Thus, I believe the majority errs in its holding to the extent that it unjustifiably deviates from the findings of the magistrate judge. The majority also points out that the French defendants directly used the Dan-ver information in its negotiations with Mit-sui. In other words, the Danver information enabled the French defendants to negotiate more effectively with the more sophisticated Mitsui. It is important to note, however, that this “use” did not lead to the incorporation of Danver technology at the Eurocel plant. Indeed, the record is clear that the design and construction of the Eurocel plant was based on Mitsui information. The majority therefore relies upon one set of facts to establish jurisdiction (the French defendants’ dealings with Dan-ver) and another set to establish a cause of action (the French defendants’ dealings with Mitsui). This, in my opinion, is insufficient to establish jurisdiction under the *224 FSIA, under the standard the majority itself recognizes. In sum, the majority attempts to establish jurisdiction in two ways. They first conclude that the evidence permits them to draw certain inferences notwithstanding that the magistrate judge specifically found otherwise. The majority next relies upon a set of facts separate from those facts which give rise to the cause of action. The relationship between the possible use of information to negotiate a better contract for technology believed to be untainted is, in my opinion, too attenuated to establish jurisdiction. I would reverse the decision of the District Court and dismiss the case because subject matter jurisdiction is lacking. For these reasons, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8995206. Public record. Not legal advice.