Petition for Writ of Certiorari — Erica Davis, as Personal Representative of the Estate of Andrew Dale Davis, Deceased, and Minor Children, JC, Minor Child, SD, Minor Child, et al., Petitioners v. Cranfield Aerospace Solutions, Limited

No. 23-_____

IN THE

ERICA DAVIS, AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF ANDREW DALE DAVIS, DECEASED, AND MINOR

CHILDREN, JC, MINOR CHILD, SD, MINOR CHILD;

MICHAEL M. MASCHMEYER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF R. WAYNE ESTOPINAL, DECEASED; JAMES JOHNSON, INDIVIDUALLY AND AS INDEPENDENT CO-ADMINISTRATORS OF THE ESTATE OF

SANDRA JOHNSON, DECEASED; BRADLEY HERMAN, INDIVIDUALLY AND AS INDEPENDENT CO-ADMINISTRATORS

OF THE ESTATE OF SANDRA JOHNSON, DECEASED,

Petitioners,

V.

CRANFIELD AEROSPACE SOLUTIONS, LIMITED,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Tejinder Singh

Counsel of Record

SPARACINO PLLC

1920 L Street, NW

Suite 835

Washington, DC 20036

(202) 629-3530

tejinder@sparacinopllc.com

Additional Counsel on Inside Cover

Thomas P. Routh

Michael S. McArdle

NOLAN LAW GROUP

20 N. Clark Street

30th Floor

Chicago, IL 60602

Attorneys for Petitioner

Maschmeyer

Joseph J. Slama

Krupnick Campbell

Malone

BUSER SLAMA HANCOCK, PA

12 SE 7th Street

Suite 801

Ft. Lauderdale, FL 33301

Attorneys for Petitioner

Davis

David Katzman

Bruce Lampert

Bradley Stoll

KATZMAN, LAMPERT &

STOLL PLLC

9596 Metro Airport Avenue

Bloomfield, CO 80021

Attorneys for Petitioner

Johnson

i

QUESTION PRESENTED

Whether an out-of-forum defendant that establishes a continuing relationship with an in-forum company by contracting to help the in-forum company develop and sell a product in the forum purposefully

avails itself of the forum for purposes of the Fourteenth Amendment’s personal jurisdiction inquiry.

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding are named on the

cover page.

iii

RELATED PROCEEDINGS

Davis v. Cranfield Aerospace Solutions, Ltd.,

No. 2.20-cv-00536-BLW. U.S. District Court for the

District of Idaho. Judgment entered January 4, 2022

Davis v. Cranfield Aerospace Solutions, Ltd,

No. 22-35099. U.S. Court of Appeals for the Ninth

Circuit. Judgment entered June 23, 2023

iv

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

RELATED PROCEEDINGS....................................... iii

TABLE OF AUTHORITIES ........................................ v

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

STATEMENT OF THE CASE..................................... 1

REASONS FOR GRANTING THE WRIT ................ 10

I. The Ninth Circuit’s Precedential Decision

Conflicts With the Precedents of Other

Circuits and State Courts of Last Resort ....... 11

II. The Decision Below Conflicts With This

Court’s Precedents .......................................... 25

III.The Question Presented Is Important ........... 29

CONCLUSION .......................................................... 31

v

TABLE OF AUTHORITIES

Cases

Adelson v. Hananel,

510 F.3d 43 (1st Cir. 2007) .................................... 13

Bristol-Myers Squibb Co. v. Superior Ct. of Cal.,

582 U.S. 255 (2017) ................................................ 29

Brockett Co. v. Crain,

483 P.3d 432 (Idaho 2021) ............................... 23, 24

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) .................. 10, 11, 25, 26, 27, 28

Central Freight Lines Inc. v. APA Transport

Corp.,

322 F.3d 376 (5th Cir. 2003) ............................ 14, 19

Citadel Group Ltd. v. Wash. Reg’l Med. Ctr., 536

F.3d 757 (7th Cir. 2008) ......................................... 15

Dakota Indus., Inc. v. Ever Best Ltd.,

28 F.3d 910 (8th Cir. 1994) .................................... 18

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

141 S. Ct. 1017 (2021) ............................................ 28

Keeton v. Hustler Magazine, Inc.,

465 U.S. 770 (1984) ................................................ 27

MAG IAS Holdings, Inc. v. Schmückle,

854 F.3d 894 (6th Cir. 2017) ...................... 17, 22, 23

Marcus Food Co. v. DiPanfilo,

671 F.3d 1159 (10th Cir. 2011) .............................. 12

Miss. Interstate Express, Inc. v. Transpo, Inc.,

681 F.2d 1003 (5th Cir. 1982) .................... 17, 18, 19

Noll v. Am. Biltrite Inc.,

395 P.3d 1021 (Wash. 2017) .................................. 25

Polar Supply Co. v. Steelmaster Indus., Inc.,

127 P.3d 52 (Alaska 2005) ..................................... 25

vi

Schwab Short-Term Bond Mkt. Fund v. Lloyds

Banking Grp. PLC,

22 F.4th 103 (2d Cir. 2021) .................................... 17

Sloss Indus. Corp. v. Eurisol,

488 F.3d 922 (11th Cir. 2007) .................... 18, 21, 22

Whittaker Corp. v. United Aircraft Corp.,

482 F.2d 1079 (1st Cir. 1973) .............. 17, 20, 21, 22

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ................................................ 27

Yamashita v. LG Chem, Ltd.,

518 P.3d 1169 (Haw. 2022) .................................... 25

Statutes

Cal. Civ. Proc. Code § 410.10..................................... 25

Nev. Rev. Stat. § 14.065(1) ........................................ 25

Regulations

14 C.F.R. § 21.115 ........................................................ 2

14 C.F.R. § 21.120 ........................................................ 5

Rules

Ariz. R. Civ. P. 4.2...................................................... 25

Or. R. Civ. P. 4(L) ...................................................... 25

OPINIONS BELOW

The Ninth Circuit’s precedential opinion (Pet.

App. 1a-33a) is published at 71 F.4th 1154. The district court’s opinion (Pet. App. 34a-53a) is not in the

Federal Supplement, but is available at 2022 WL

36488.

JURISDICTION

The Ninth Circuit issued its decision on June 23,

2023, Pet. App. 1a, and denied a timely petition for rehearing on August 30, 2023, id. at 54a. On November

28, 2023, Justice Kagan granted a timely application

to extend the time to file this petition to and including

January 12, 2024. See No. 23A467. This Court has jurisdiction under 28 U.S.C. § 1254.

STATEMENT OF THE CASE

I.

Factual Background

1. This tort action arises out of a fatal air crash

caused by a defective aviation product called the Active Winglet Load System (ATLAS), manufactured

and installed by Tamarack Aerospace Group, a Washington corporation with its principal place of business

in Idaho. See Pet. App. 3a. Petitioners are the family

members and estates of the accident victims. Id. at 2a.

Respondent is Cranfield Aerospace Solutions, a British company that enabled Tamarack to obtain key regulatory approvals that allowed it to install the ATLAS

on aircraft. Id. at 2a-3a. Indeed, when the ATLAS was

installed on the accident aircraft, Cranfield held the

federal government approval that allowed Tamarack

to install the system. Id. at 4a.

More specifically, Tamarack contractually retained Cranfield to help Tamarack obtain

2

Supplemental Type Certificates (STC), which are regulatory approvals from American and European aviation authorities that were necessary before Tamarack

could sell the ATLAS in those jurisdictions. Pet. App.

3a-4a. Obtaining an STC requires the manufacturer to

conduct appropriate testing on the product and present the results to regulatory agencies for approval.

See 14 C.F.R. § 21.115. Tamarack initially retained

Cranfield to obtain an STC for the ATLAS from the

European Aviation Safety Agency (EASA), and later

expanded the engagement to include an STC from the

Federal Aviation Administration (FAA). Pet. App. 3a4a.

Pursuant to these agreements, Cranfield and

Tamarack enjoyed a continuous business relationship

from 2013 until 2019 where Cranfield both oversaw

Tamarack’s testing work and also acted as its agent

with the EASA and the FAA. See Pet. App. 3a-4a. Beginning in 2013, Cranfield took the lead role in preparing the STC applications as an agent for Tamarack.

Id.; C.A. ER-36. 1 Cranfield oversaw Tamarack’s testing, approved the resulting data, presented applications to the regulators on Tamarack’s behalf, and even

held a proprietary interest in the STCs for Tamarack’s

benefit, enabling Tamarack’s production and sales of

the ATLAS. See Pet. App. 24a-25a (Baker, J., dissenting in part) (summarizing Cranfield’s obligations); see

also C.A. ER-72-73; id. at 86-88; C.A. SER-83-86

Citations to C.A. ER are to the Excerpts of Record filed in

the Ninth Circuit; citations to C.A. SER are to the Supplemental

Excerpts of Record. The cited documents include the transcript of

testimony from Cranfield’s head of design (taken during jurisdictional discovery), as well as the contracts between Cranfield and

Tamarack.

1

3

(contracts between Tamarack and Cranfield). Those

years of collaboration allowed Tamarack to sell the

ATLAS from its facility in Idaho to buyers in the

United States and Europe. For this work, Tamarack

paid Cranfield hundreds of thousands of dollars. See

C.A. ER-88; C.A. SER-84.

Cranfield’s work centered on Idaho. Shortly after

the contracts were executed, Cranfield employees, including its head of design, visited Tamarack in Idaho

to familiarize themselves with Tamarack’s facilities,

set the plan for the certification application, and help

Tamarack begin its portion of the work in Idaho. C.A.

ER-9-10. Cranfield’s head of design agreed that the

purpose of this visit was “to commence performance

under the contract. To get it headed in the right direction to turn it over to engineering and to make sure

that the contract was in force and effect.” Id. at 39-40.

These meetings happened in Idaho because Cranfield

knew “that’s where the testing was—was being done,

the manufacturing was going to be done, and the sales

were going to be done for [the ATLAS] system.” Id. at

40. And the ATLAS was what the Cranfield employees

“were in Idaho . . . to work on.” Id. In addition to seeing

a prototype of the system (including participating in a

test flight), Cranfield employees met with approximately a dozen engineers “to go through what we call

certification planning,” which included “looking where

we’d need input from Tamarack” so that that the engineers in Idaho understood “in terms of the contract

how it’s actually going to work in practical terms.” Id.

at 41. The Cranfield employees thus reviewed Tamarack’s testing plan, which was “a long and detailed process to make sure that we helped send them off in

4

terms of doing then what we felt were the necessary

activities.” Id. at 43.

Cranfield’s head of design testified that this meeting was part of “a typical launch activity with any customer” because “you need to get to know their team”;

thus, the witness agreed that the Idaho visit was neither “fortuitous” nor “random,” explaining that it was

“definitely with a specific purpose in mind.” C.A. ER42. Pursuant to the contract, Tamarack paid the Cranfield employees’ travel expenses, as well as a per diem.

Id. at 38-39.

For years after the launch meeting, Cranfield

worked closely with Tamarack, overseeing its testing

activities in Idaho. Tamarack conducted the actual

testing in Idaho, and the contract gave Cranfield unilateral power to deem any test that Tamarack conducted a failure, and thus to prevent its submission.

C.A. ER-47. Pursuant to that responsibility to supervise testing in Idaho, Cranfield’s chief stress engineer

(id. at 49) traveled to Idaho in 2017 to witness tests.

Id. at 47. “[H]e was not only there to observe the test

in Idaho,” but in fact “literally had control over

whether or not the test was a pass or a fail”; and that

was “true of all the work [Tamarack] did for [Cranfield]” in Idaho. C.A. ER-48. These tests were “a key

step” in the process and were “critical to safety.” Id. at

49. That trip lasted a week, id. at 51, and again Tamarack paid Cranfield’s expenses plus an extra per diem

pursuant to the contract’s terms, id. at 52.

Over the years, Cranfield “reviewed thousands of

pages of documents” prepared by Tamarack, and also

had “regular[]” phone conferences with Tamarack employees. C.A. ER-53. Once Cranfield determined that

Tamarack’s testing was adequate, Cranfield applied

5

for the STCs in its own name because Tamarack was

not qualified to hold them. Id. at 36; C.A. SER-53-54.

To support that application, Cranfield used test reports produced by Tamarack in Idaho, then created “a

version of this with our front cover on, that we would

sign off as part of the certification.” C.A. ER-46; see

also C.A. SER-42.

When the STCs were granted, Cranfield held

them for Tamarack’s benefit, allowing Tamarack (in

Idaho) to use Cranfield’s STCs to sell the ATLAS. C.A.

ER-54. Under this arrangement, “Cranfield’s approval

was necessary for Tamarack to install the ATLAS system on any aircraft”—including the accident aircraft

in this case. Pet. App. 25a (Baker, J., dissenting); see

14 C.F.R. § 21.120. Ultimately—approximately six

years after Cranfield was originally engaged, and after

the accident—Cranfield transferred the STCs to Tamarack in Idaho. Pet. App. 4a (majority op.). All of that

was contemplated by the contract, which had no fixed

term (C.A. ER-75-76) and called for all of these interactions between Cranfield and Tamarack in Idaho.

The upshot is that Cranfield contracted with Tamarack in Idaho; advised and supervised Tamarack in

conducting necessary tests in Idaho (including by

sending high-level employees to the State); obtained

the necessary FAA approval that allowed Tamarack to

sell the ATLAS in Idaho, and approved Tamarack’s installation of the ATLAS on the accident aircraft in

Idaho. This relationship lasted for six years.

2. When the ATLAS caused a fatal air crash (in

Indiana), petitioners sued both Tamarack and Cranfield in federal district court in Washington, where

Tamarack is incorporated. Pet. App. 4a. The action

against Tamarack remained there; the action against

6

Cranfield was dismissed for lack of personal jurisdiction, and petitioners brought a new action against

Cranfield in federal district court in Idaho. Id.

The district court ordered jurisdictional discovery,

where Cranfield’s head of design testified about the

work Cranfield performed—including in Idaho. See supra pp.3-4. Notwithstanding that testimony, the district court granted Cranfield’s motion to dismiss for

lack of personal jurisdiction, holding that Cranfield’s

contacts with Idaho did not constitute purposeful

availment. See Pet. App. 35a. The district court found

it particularly significant that Tamarack sought out

Cranfield (and not the other way around), and that

Cranfield performed the bulk of its work in England.

See id. at 48a-49a. The district court accordingly ordered the action dismissed. Id. at 53a.

3. A sharply divided panel of the Ninth Circuit affirmed in a precedential decision. The court held that

it would be reasonable to apply both the tests for purposeful direction and purposeful availment to determine whether Cranfield was subject to personal jurisdiction. See Pet. App. 7a-9a. It determined that the

purposeful direction test was not met because no harm

occurred in Idaho. Id. at 9a-10a.

Turning to purposeful availment, the court of appeals, like the district court, concluded that:

Appellants failed to establish that Cranfield

purposefully availed itself of the benefits and

protections of Idaho. While Tamarack is an

Idaho resident, there’s no evidence that Cranfield sought out Tamarack in Idaho or benefitted from Tamarack’s residence in Idaho.

Neither the contract’s negotiations, terms,

7

nor contemplated consequences establish

that Cranfield formed a substantial connection with Idaho. And while the course of dealings show that Cranfield employees entered

Idaho several times, those transitory trips

into the forum state do not sufficiently reflect

purposeful availment.

Pet. App. 11a.

The court recognized that “the contract contemplated that Cranfield would hold the EASA and FAA

supplemental type certification on behalf of Tamarack,” and that Cranfield held these “at the time of the

crash.” Pet. App. 13a. But the court concluded that this

was insufficient, comparing it to the “‘normal incidents

of [legal] representation.’” Id. In this regard, the court

of appeals emphasized that although Cranfield held

the certificates, “Tamarack remained responsible for

any modifications to the FAA certification and any

testing or analysis necessary for the modifications.” Id.

The court also held that it was not enough that

Cranfield engaged in substantial remote work for

Tamarack, nor that Cranfield’s employees made trips

“to Tamarack’s Idaho facility as part of the contract.”

Pet. App. 14a. The court concluded that these trips

were “too attenuated to establish minimum contacts

with the State” because “the employees traveled at

Tamarack’s request and expense, and the trips did not

suggest a ‘special place’ in Cranfield’s years-long performance of its contract with Tamarack.” Id. at 16a.

“While observing testing of the ATLAS system is important, the record shows that approval of the testing

could have occurred in the United Kingdom,” and so

the fact that such observation actually occurred inperson in Idaho was immaterial. Id.

8

The panel decision was not unanimous. A vociferous dissent explained that petitioners “lopsidedly carried [their] burden by showing that Cranfield undertook continuing obligations entailing substantial activity directed toward Tamarack . . . in Idaho for over

six years.” Pet. App. 17a (Baker, J., dissenting).

In the dissent’s view, the correct legal rule is that

“[a] nonresident purposefully avails itself of the forum

state when it undertakes (1) continuing obligations (2)

entailing some meaningful activity directed toward or

producing effects in the forum.” Pet. App. 18a. “On the

other hand, if a nonresident’s contract with a forum

resident does not create any ongoing obligations, purposeful availment does not exist.” Id. at 20a (quotation

marks omitted). “And even if a nonresident’s contract

with a forum resident does involve continuing obligations, purposeful availment is not satisfied if the nonresident’s obligations do not entail any significant activity toward, or create effects within, that forum.” Id.

The dissent argued that this test was met because the

contract between Cranfield and Tamarack “created,

and the parties’ course of dealing reflected, continuing

and meaningful Idaho-facing obligations by Cranfield

until 2019 when the British company transferred the

ATLAS certification to Tamarack.” Id. at 21a.

The dissent elaborated that the contract’s terms

showed that “the two companies partnered—with

Cranfield acting as the senior partner because it would

‘oversee’ the junior partner’s work in Idaho.” Pet. App.

24a (quoting the contract). Thus, the contract required

Cranfield to “approv[e] . . . test schedules and reports

provided by Tamarack,” “define and outline certification requirements,” and “‘ensure’ Tamarack’s ‘compliance with all applicable laws and regulations.’” Id.

9

(quoting the contract). The dissent also emphasized

that the contract required Cranfield to maintain the

certification for Tamarack’s benefit. “As the certification holder, Cranfield’s approval was necessary for

Tamarack to install the ATLAS system on any aircraft.” Id. at 25a.

The dissent further explained that “no federal

court—until today—has ever held that continuous supervision or management of forum-state activities is

insufficient to establish personal jurisdiction.” Pet.

App. 30a. It accordingly cited precedents from “the Supreme Court and our sister circuits” reaching the opposite conclusion. Id. at 30a-31a.

The dissent also addressed each of the concerns

that motivated the majority, including that Tamarack

initiated the contractual relationship, Pet. App. 21a,

that the contract contained a choice-of-law clause selecting New York, id. at 22a, that most of Cranfield’s

work was done remotely, id. at 23a-24a, 28a-30a, and

that the two visits by Cranfield’s employees were random or fortuitous, id. at 31-32a. The dissent explained

that in light of Cranfield’s years-long active role, and

substantial Idaho-facing conduct, Cranfield had minimum contacts with Idaho.

The dissent concluded sharply:

Sometimes we decide close cases, where only

a slight breeze might tip the balance. This is

not one of them. Plaintiffs have established

that in over six years of continuing obligations, Cranfield remotely supervised Tamarack’s work in Idaho, physically supervised

that work in two visits expressly contemplated by their contract, held a regulatory

10

certification on Tamarack’s behalf that allowed the transaction of business within the

forum, and specifically approved Tamarack’s

installation of the ATLAS system on the accident aircraft in Idaho. That’s much, much,

more than enough to establish purposeful

availment under our published cases. I respectfully dissent from today’s aberrational

decision.

Pet. App. 32a-33a.

4. Petitioners sought rehearing en banc, which

was denied, with the dissenting judge recommending

that the petition be granted. Pet. App. 54a.

5. This petition followed.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the Ninth

Circuit’s precedential decision conflicts with the decisions of other courts of appeals, state courts of last resort, and this Court. The questions posed by this case

are also important and frequently recurring, and this

case is a suitable vehicle to resolve them.

In Burger King Corp. v. Rudzewicz, 471 U.S. 462

(1985), this Court explained that where a defendant

“deliberately has engaged in significant activities

within a State, or has created continuing obligations

between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting

business there” for purposes of establishing minimum

contacts. Id. at 475-76 (citations and quotation marks

omitted). The Court was clear that “[j]urisdiction in

these circumstances may not be avoided merely because the defendant did not physically enter the forum

State.” Id. That was because, even in 1985, it was “an

11

inescapable fact of modern commercial life that a substantial amount of business is transacted solely by

mail and wire communications across state lines, thus

obviating the need for physical presence within a State

in which business is conducted.” Id.

Applying that precedent, federal circuit courts

and state courts of last resort hold that when a defendant enters into and performs a contract creating continuing obligations between itself and a forum resident, that is sufficient to establish minimum contacts.

Here, however, the Ninth Circuit disregarded that

bright-line rule, giving short shrift to facts that other

courts deem sufficient to create jurisdiction. The conflict is acute because Cranfield did far more than

merely create continuing obligations with Tamarack

in Idaho: It controlled Tamarack’s in-forum testing activities, physically visited Idaho twice, and then held

the certification on Tamarack’s behalf, thus controlling whether Tamarack could install the ATLAS on

planes in Idaho—including the accident aircraft. Most

other circuits would hold that such contacts easily constitute purposeful availment of the State, and this

Court should grant certiorari to resolve the conflict.

I.

The Ninth Circuit’s Precedential

Decision Conflicts With the Precedents

of Other Circuits and State Courts of

Last Resort

Certiorari should be granted first because the

Ninth Circuit’s precedential decision conflicts with decisions of eight other circuits and state courts of last

resort.

1. First, although the dissent set forth the controlling rule that a defendant creates minimum contacts

12

with a forum by entering into a contract that creates

continuing obligations toward forum residents, the

majority never mentions that rule—not once. Nor did

the majority dispute the fact that Cranfield’s contract

created continuing obligations vis-à-vis Tamarack

that resulted in Cranfield taking actions in the forum.

Instead, the majority brushed these obligations and

relationships aside by focusing on other facts—including that most of Cranfield’s work was done remotely.

That decision can’t be reconciled with Marcus

Food Co. v. DiPanfilo, 671 F.3d 1159 (10th Cir. 2011).

There, a Kansas business hired a Canadian sales and

purchasing agent to facilitate sales outside the United

States. See id. at 1163-64. When the relationship

soured, the company sued the agent in Kansas. The

agent’s contacts with Kansas were similar to Cranfield’s contacts with Idaho: He worked as an independent contractor, communicated regularly with the business by mail, e-mail, and fax, visited the Kansas office

twice over a ten-year period, and was paid by the business from Kansas. See id. The district court held these

contacts sufficient, explaining that “[t]he parties’

agreement created precisely the type of ‘continuing relationship’ on which the Supreme Court grounded personal jurisdiction in Burger King.” Id. at 1167.

The facts here are either the same as or stronger

than the facts of Marcus Food. Cranfield also worked

as Tamarack’s agent. It regularly communicated with

Tamarack in Idaho. It visited twice. And it received

payment from the Idaho business for its work. On top

of those facts, Cranfield exercised actual control over

Tamarack’s in-forum activities—which the agent in

Marcus Food did not. And it held a key regulatory approval in trust for Tamarack, thus enabling Tamarack

13

to install the ATLAS on aircraft in Idaho—a level of

involvement with no analogue in Marcus Food. The

only sense in which Marcus Food had even arguably

stronger facts is that the relationship between the parties lasted ten years rather than six—but no court has

ever held that such a difference could matter; indeed,

even the Ninth Circuit did not suggest that six years

was not long enough to constitute a continuing relationship. By necessity, this case would have come out

the other way in the Tenth Circuit.

The decision below also conflicts with Adelson v.

Hananel, 510 F.3d 43 (1st Cir. 2007). There, a resident

of Israel took an offer of employment to run the Israeli

office of a company headquartered in Massachusetts;

his role was to identify investment opportunities in Israel. See id. at 46. The employee resided in Israel, but

he joined the company during a visit to Massachusetts;

he regularly spoke and corresponded with individuals

in the Massachusetts office during his employment;

and his budgets and expenses were submitted to and

obtained from Massachusetts. See id. at 46-47, 50. The

First Circuit deemed these contacts sufficient to hale

the employee into federal court in Massachusetts after

the employment relationship soured. See id. at 51.

Cranfield’s contacts are, again, stronger. It also

initiated its relationship with Tamarack during an inperson kick-off meeting; it corresponded regularly

with Tamarack’s employees; and it obtained funds

from Tamarack in Idaho—and each of those contacts

has a clear parallel with the contacts deemed sufficient in Adelson. In addition, Cranfield exercised control over some of Tamarack’s operations in Idaho,

which is a significant contact with no parallel in Adelson.

14

The Fifth Circuit’s decision in Central Freight

Lines Inc. v. APA Transport Corp., 322 F.3d 376 (5th

Cir. 2003), also conflicts with the decision below.

There, the defendant was a New Jersey-based freight

delivery company that affiliated with a different

freight delivery company in Texas through a contract

called an “Interline Agreement.” Id. at 379. The record

showed that “all of the formal negotiations [for the

agreement] took place via telephone and written correspondence between the two parties from their respective headquarters.” Id. at 382. The court held that

by participating in these negotiations, the defendant

“specifically and deliberately ‘reached out’ to a Texas

corporation by telephone and mail with the deliberate

aim of entering into a long-standing contractual relationship with a Texas corporation.” Id. The defendant

also “knew that it was affiliating itself with an enterprise based primarily in Texas,” and “presumably

knew that many of [the plaintiff’s] customers would

also come from that state.” Id. These contacts constituted purposeful availment. The relationship lasted

for less than a year. See id. at 379.

Cranfield similarly corresponded with Tamarack

in Idaho, thus reaching out to that state like the defendant in Central Freight Lines. It contracted with

Tamarack, knowing that Tamarack was in Idaho, and

that Tamarack’s customers were there, too. That is

enough to place the contacts here on par with the ones

in Central Freight Lines—but this case includes substantial additional contacts that make it even easier,

including a longer relationship, more personal contact,

and control and supervision over Idaho-based testing

and then installations.

15

The decision below also conflicts with Citadel

Group Ltd. v. Washington Regional Medical Center,

536 F.3d 757 (7th Cir. 2008). There, an Arkansasbased nonprofit solicited bids for a construction project

in Arkansas. Id. at 758-59. An Illinois-based developer

responded to the solicitation, and the non-profit sent

various messages to the developer asking questions,

followed by an authorization to engage in project development, which the developer executed. Id. at 75960. The parties corresponded about the project for less

than a year before the non-profit ultimately decided

not to proceed. Id. Nobody from the non-profit ever

traveled to Illinois. Id. at 759.

The developer sued the non-profit in Illinois, seeking to recover its costs. Based on “twenty-four ‘contacts’—primarily consisting of correspondence by

mail, fax, phone, and e-mail—”the Seventh Circuit

held that jurisdiction existed. Citadel, 536 F.3d at 762.

The court stressed that the contract required the developer “to provide a service,” and that “the parties

had continuing obligations and repeated contacts,”

which “cross[ed] the threshold from offending due process to sufficient minimum contacts.” Id. at 763.

Cranfield’s contacts with Idaho surpass the defendant’s contacts with Illinois in Citadel. Here, as in

Citadel, the contract was to perform services involving

continuing obligations and repeated contacts. But unlike the relationship in Citadel, which was “truly preliminary,” 536 F.3d at 762, Cranfield’s relationship

with Tamarack was mature: It completed multiple

projects for the Idaho company. Thus, Cranfield

worked with Tamarack to create a testing plan, which

Tamarack implemented in Idaho, and then supervised

the resulting testing through robust correspondence

16

and two in-person visits. This relationship lasted for

six years. Under Citadel, this case would have come

out differently.

2. The foregoing cases show that even if Cranfield

had merely contracted to create a continuing relationship with Tamarack in Idaho, and then followed

through on its agreement, that would have been

enough to constitute purposeful availment in at least

four circuits. But the scope and depth of Cranfield’s

contacts were far greater: Cranfield helped create the

testing plan that Tamarack implemented in Idaho;

oversaw the testing that occurred in Idaho (including

through an in-person visit); reviewed and approved

the relevant test data before applying for an STC from

the FAA—and then held that STC for Tamarack, approving each of Tamarack’s installations of the ATLAS

on aircraft in Idaho, including the accident aircraft.

The Ninth Circuit deemed all of that insufficient.

To be sure, the court of appeals acknowledged that as

part of its contract, Cranfield “oversaw” Tamarack’s

testing activities in connection with the relevant certification applications. Pet. App. 3a. Those tests undisputedly occurred at Tamarack’s facility in Idaho. But

the court held that this was insufficient because the

contract did “not specify whether Cranfield must ‘witness’ any tests in person.” Id. at 12a. The court elaborated that “Cranfield’s remote work on behalf of Tamarack’s ATLAS project does not, without more, establish purposeful availment.” Id. at 14a. And with respect to the in-person overseeing of the testing that did

occur, the court held that “[w]hile observing testing of

the ATLAS system is important, the record shows that

approval of the testing could have occurred in the

United Kingdom.” Id. at 16a. Putting these

17

conclusions together, the rule in the Ninth Circuit is

that an out-of-forum defendant’s ongoing supervision

of an in-forum entity does not constitute purposeful

availment of the forum unless in-person supervision is

contractually required. In the Ninth Circuit, neither

continuous remote supervision nor even voluntary inperson supervision suffice.

That rule is an outlier. As the dissent explained,

“no federal court—until today—has ever held that continuous supervision or management of forum-state activities is insufficient to establish personal jurisdiction.” Pet. App. 30a (Baker, J., dissenting). The dissent

thus cited cases from the First, Second, Fifth, and

Sixth Circuits holding that “controlling ongoing activities in the forum state” constitutes purposeful availment. Id. (citing Schwab Short-Term Bond Mkt. Fund

v. Lloyds Banking Grp. PLC, 22 F.4th 103, 125 (2d Cir.

2021) (holding that foreign defendant’s control over inforum company’s behavior was sufficient, but not necessary, to impute domestic contacts to foreign defendant); MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d

894, 901-02 (6th Cir. 2017) (holding that foreign executive was subject to personal jurisdiction when he exercised some control over Michigan subsidiary’s operations); Miss. Interstate Express, Inc. v. Transpo, Inc.,

681 F.2d 1003, 1009 (5th Cir. 1982) (holding that foreign freight broker was subject to personal jurisdiction

when it exercised control over certain details of shipments from the forum); Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1084 (1st Cir. 1973) (holding that foreign purchaser was subject to jurisdiction

when it provided product specifications and instructions to domestic manufacturer/seller)). Other circuit

decisions are to similar effect. See, e.g., Dakota Indus.,

18

Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir. 1994)

(holding that foreign shareholders of company had

minimum contacts because they exercised control over

company’s in-forum conduct); Sloss Indus. Corp. v.

Eurisol, 488 F.3d 922, 933 (11th Cir. 2007) (finding a

foreign purchaser had minimum contacts in seller’s forum when the purchaser sent personnel to the plant to

discuss manufacturing processes).

The conflict is clear. It is most stark with respect

to the Fifth Circuit’s decision in Mississippi Interstate

Express. There, a Mississippi trucking company and a

California freight broker negotiated and then carried

out an agreement entirely by phone, under which the

California broker was meant to pay the Mississippi

trucking company for various shipments the trucking

company delivered. See 681 F.2d at 1005. When the

broker didn’t pay, the trucking company sued it in

Mississippi, and the broker challenged jurisdiction, arguing that: (1) the contract discussions occurred in

California; (2) the defendants “did no act inside Mississippi” other than placing telephone calls to the

plaintiff there; (3) none of the shipments pursuant to

the contract originated or terminated in Mississippi;

(4) the defendants had no office in Mississippi, nor

ever sent representatives there; (5) the defendants solicited no business in Mississippi and had no local advertising or bank accounts there; and (6) all of the alleged acts in furtherance of the alleged tort occurred

outside Mississippi. See id.

The Fifth Circuit recognized that the defendant’s

“contact with the State of Mississippi was somewhat

minimal, consisting primarily of entering into a contract with a Mississippi corporation and engaging that

corporation to deliver certain shipments between

19

states other than Mississippi.” Miss. Interstate Exp.,

681 F.2d at 1006. But the court nevertheless held that

the due process clause permitted Mississippi courts to

assert jurisdiction. It explained that the rule in the

Fifth Circuit “is that when a nonresident defendant

takes purposeful and affirmative action, the effect of

which is to cause business activity, foreseeable by (the

defendant), in the forum state, such action by the defendant is considered a minimum contact for jurisdictional purposes.” Id. at 1007 (quotation marks omitted). The defendant was subject to jurisdiction because

it had contracted with a Mississippi counterparty and

because it was reasonably foreseeable that the counterparty would perform a material part of its contractual obligations in the forum. Id. at 1008. And that was

especially clear because “the non-resident defendant

was no mere passive customer.” Id. at 1009. Instead,

it initiated the shipments, “exercised a significant

measure of control” over the details of the shipments,

had a “sustained” relationship with the in-forum company, and knew that the in-forum company would perform its share of the work “at its sole place of business

in Mississippi.” Id. 2

Although Mississippi Interstate Express is an

older precedent, the Fifth Circuit has repeatedly reaffirmed the rule stated therein. See, e.g., Cent. Freight

Lines, 322 F.3d at 382 n.6 (reaffirming the rule “that

a nonresident can establish contact with the forum by

taking purposeful and affirmative action, the effect of

which is to cause business activity (foreseeable by the

defendant) in the forum state,” and citing Mississippi

Interstate Express as the relevant authority).

2

20

The decision below plainly conflicts with the Fifth

Circuit’s rule and holding. Here, Cranfield took purposeful and affirmative action by contracting with

Tamarack to supervise (and then in fact supervising)

Tamarack’s testing of the ATLAS in Idaho. This action

led to business activity in Idaho, i.e., the testing of the

ATLAS, and its subsequent sale and installation on

aircraft in Idaho. The relationship was six years long

and involved robust correspondence and collaboration,

including two substantive in-person visits by Cranfield personnel to Idaho. These contacts far exceed the

ones the Fifth Circuit would find sufficient.

The same is true vis-à-vis other circuits. In Whittaker, the First Circuit held that an out-of-forum defendant (with its principal place of business in Connecticut) had minimum contacts with Massachusetts

when the defendant contracted with an in-forum company to supply metal alloy for use in jet engines. See

482 F.2d at 1081. The defendant requested materials

from the Massachusetts company for testing purposes,

and then conducted tests on those materials at its outof-forum facility; it then executed a contract with the

Massachusetts company that required the company to

promise not to change its manufacturing process, and

not to disclose details of the defendant’s processes to

third parties. Based on that agreement, the defendant

notified its suppliers that they could use the Massachusetts company as a source of materials. During

their five-year relationship, the defendant sent employees to visit the in-forum company’s facility nine

times, and also exchanged a few dozen messages by

phone, mail, or teletype. See id. at 1081-82.

The First Circuit held that these contacts were

sufficient to support personal jurisdiction, explaining

21

that from the contacts, “it seems a fair inference that

[the defendant] either actively supervised or actually

participated in [the in-forum company’s] initial development of the alloy logs.” 482 F.2d at 1084. Thereafter,

“the contacts continued to be extensive,” including

substantial correspondence. Id. And “[g]iven the five

year history of prior dealing between the parties, [the

defendant] may not claim surprise at being expected

to appear in this forum.” Id.

The Eleventh Circuit reached the same result in a

case involving even slimmer contacts in Sloss Industries. There, an Alabama insulation producer sued a

European purchaser in federal court in Alabama, and

the defendant challenged jurisdiction. The court recognized that the defendant did “not have any offices,

officers, employees, or agents in Alabama,” did “not

own any real property in Alabama,” was “not licensed

or authorized to do business in Alabama, does not do

business in Alabama, and does not have any customers in Alabama,” sold “all of its goods in Europe,” and

did “not solicit business in Alabama.” Sloss Indus., 488

F.3d at 925-26. Indeed, other than the plaintiff in-forum company, the defendant did “not have any suppliers in Alabama.” Id. at 926.

Nevertheless, the Eleventh Circuit held that jurisdiction was appropriate when the defendant had

placed ten unsolicited orders for the Alabama company’s product during a time period spanning several

months, “thereby establishing a course of dealing”;

when it had its agent send containers to the Alabama

company on six occasions to pack the shipments for

shipping; and when its executives had, on one occasion, visited the Alabama company’s plant, during

which “they discussed the manufacturing process and

22

proposed” that the Alabama company enter into an exclusive business arrangement with them. Sloss Indus.,

488 F.3d at 933.

The contacts here are more robust than the contacts that gave rise to jurisdiction in both Whittaker

and Sloss. In those cases, the courts essentially held

that it was enough that the defendant was “more than

a mere passive purchaser.” Sloss, 488 F.3d at 933; see

also Whittaker, 482 F.2d at 1084 (explaining that the

defendant’s “participation in the economic life of Massachusetts seems clearly to rise above that of a purchaser who simply places an order and sits by until the

goods are delivered”). Instead, the defendants in those

cases took an active role in the forum company’s business by offering input in the form of specifications and

advice. Cranfield’s contacts with Tamarack were even

more robust because Cranfield was not even arguably

a mere purchaser; it was hired by Tamarack to provide

exactly that sort of input into Tamarack’s Idaho business. Thus, Cranfield advised Tamarack about the creation of a testing plan that Tamarack would run in

Idaho, and then oversaw Tamarack’s testing before reviewing and approving the resulting test data. Just as

in Sloss and Whittaker, some of that supervision was

conducted remotely, and some was in-person. But

there is no serious basis to dispute that Cranfield’s

role in the approval process for the ATLAS, which enabled the ATLAS to be sold in Idaho, was substantial.

The Sixth Circuit reached the same conclusion on

slightly different facts in MAG IAS Holdings. There, a

company sued its German former CEO in Michigan

courts. See 854 F.3d at 896-97. The company alleged

that the CEO oversaw aspects of the company’s Michigan subsidiary, improperly used his power to steer

23

assets and work away from the Michigan business and

toward the company’s businesses in Germany, and visited the Michigan facility twice during his eight-month

tenure as CEO—once to meet with the management

team and learn about the facility, and once to meet

with the company’s largest client. See id. at 898.

The Sixth Circuit held that personal jurisdiction

existed, explaining that the CEO “was directly involved in planning for future operations in the state,”

including through his two visits, and “in regular contact with Michigan-based executives by phone and

email.” 854 F.3d at 901-02. He also “held himself out

both to . . . employees and to clients as being responsible for [the Michigan subsidiary’s] operations,” and

“would have known that his conduct both targeted the

state and impacted the Michigan economy more

broadly.” Id. at 902. Against the weight of those contacts, the Sixth Circuit held that it did not matter that

the CEO’s employment agreement had “German

venue and choice-of-law clauses.” Id.

3. Independently, the decision below conflicts with

the Idaho Supreme Court’s precedential decision in

Brockett Co. v. Crain, 483 P.3d 432 (Idaho 2021).

There, an Idaho company (Brockett) reached out to an

Oklahoma resident (Crain) and offered to help sell

Crain’s storage tanks. Id. at 435. The parties allegedly

formed a brokerage arrangement. Id. Aside from

Brockett’s work to line up buyers (which it found in

Texas), nothing took place in Idaho: the storage tanks

were not physically there, and Crain never visited. See

id. at 435-36. After Brockett claimed to have found a

buyer for the tanks in Texas, Crain allegedly cut

Brockett out of the deal and sold to the buyer directly.

Id. Brockett sued in Idaho, and the question whether

24

Idaho courts had jurisdiction over Crain reached the

State’s highest court.

The court held that the answer was “yes” under

the Burger King continuing-relationship rule. See

Brockett, 483 P.3d at 442. As the court explained, “the

parties engaged in a fifteen-month brokerage relationship” that “was made possible by consistent back-andforth communication . . . via electronic means,” which

constituted minimum contacts. Id. at 443. Even

though Crain “did not set foot in Idaho,” that was immaterial because had he “followed through with the

brokerage relationship,” he would have “continued to

coordinate with Brockett Co. in Idaho until they found

a suitable third-party buyer.” Id. The court thus held

that the defendants, “through their electronic communications directed at a forum resident, engaged in precisely the type of ‘continuing relationship and obligations’ contemplated in Burger King.” Id.

The contacts here are far stronger than the ones

that sufficed in Brockett. The relationship was longer

(six years versus fifteen months). The amount of physical contact was greater (two important visits versus

none). The amount of back-and-forth was greater

(thousands of pages of documents versus some unspecified amount of e-mail). The amount of control was

greater (including ability to reject test results). And a

written contract anticipated all of this (versus a disputed agreement). Put simply, Brockett is irreconcilable with the Ninth Circuit’s holding.

That creates an acute conflict of law because parties in the same jurisdiction (Idaho) now face entirely

different legal rules depending on whether their suits

land in state or in federal court. The issue is also not

limited to Idaho. Almost every State in the Ninth

25

Circuit allows courts to assert personal jurisdiction to

the extent permitted by due process. See Cal. Civ.

Proc. Code § 410.10; Nev. Rev. Stat. § 14.065(1); Ariz.

R. Civ. P. 4.2; Or. R. Civ. P. 4(L); Yamashita v. LG

Chem, Ltd., 518 P.3d 1169, 1171 (Haw. 2022); Noll v.

Am. Biltrite Inc., 395 P.3d 1021, 1026 (Wash. 2017) (en

banc); Polar Supply Co. v. Steelmaster Indus., Inc., 127

P.3d 52, 55 (Alaska 2005). The panel decision creates

new uncertainty in all those jurisdictions.

In sum, the Ninth Circuit’s precedential decision

conflicts with other binding precedents interpreting

the same federal constitutional provisions. This lack of

uniformity is untenable, and this Court should grant

certiorari to reverse.

II.

The Decision Below Conflicts With This

Court’s Precedents

The Ninth Circuit’s decision conflicts with this

Court’s seminal precedent in Burger King, which established that when a defendant contractually creates

continuing obligations to a forum resident, the minimum contacts inquiry is satisfied—even if the defendant did not physically enter the forum. See 471 U.S. at

475-76. As early as 1985, Burger King presciently foreshadowed that technological advances would render

travel unnecessary for purposeful availment. See id. at

476. That proposition was true then; it is glaringly obvious now that remote work has become the norm for

millions around the world. Accordingly, today—no less

than in 1985—Cranfield’s continuous relationship

with Tamarack, coupled with its remote activities directed toward Idaho and its in-person activities in

Idaho, constitute sufficient minimum contacts to support personal jurisdiction over Cranfield in Idaho.

26

The Ninth Circuit’s disregard for Burger King is

evident: The majority opinion cites it only fleetingly,

Pet. App. 11a-12a, never quotes from it, and flouts this

Court’s central guidance about remote work. Indeed,

the Ninth Circuit’s reasoning is directly contrary to

Burger King in this respect. The court of appeals

placed great weight on the fact that Cranfield may

have been permitted to “witness” Tamarack’s tests remotely (even though Cranfield actually witnessed

them in person), Pet. App. 12a, 14a-15a, and treated

Cranfield’s “remote work on behalf of Tamarack’s ATLAS project” as essentially irrelevant, id. at 14a, despite this Court’s clear holding that physical presence

in the State is not required at all, Burger King, 471

U.S. at 476.

The Ninth Circuit also erred in its determination

that Cranfield’s two in-person visits to Idaho were too

“random, fortuitous, or attenuated” to constitute minimum contacts with the State. Recall that the first

visit, in 2013, included Cranfield’s head of design, who

later testified that the purpose of the visit was to commence performance of the contract. This senior employee conceded that the visit was not “random” or

“fortuitous”; it was part of Cranfield’s standard engagement launch procedure and necessary to allow

Cranfield to instruct Tamarack’s team in Idaho about

what tests to perform there. See supra pp.3-4. The second visit, in 2017, was by Cranfield’s chief stress engineer, who was there to witness tests and decide

whether the product passed or failed; this was considered a key step that was critical for safety. See supra

p.4. The Ninth Circuit characterized these visits as

“too attenuated to establish minimum contacts” because they occurred “at Tamarack’s request and

27

expense, and the trips did not suggest a ‘special place’

in Cranfield’s years-long performance of its contract.”

Pet. App. 16a. In the circuit court’s opinion, even

though “observing testing of the ATLAS system is important, the record shows that approval of the testing

could have occurred in the United Kingdom.” Id.

With all due respect to the court of appeals, it fundamentally misconstrued the “random, fortuitous, and

attenuated” language in this Court’s decisions. When

this Court has used that phrase, it has typically referred to circumstances in which a small quantity of a

manufacturer’s product might make its way to a forum

State. For example, in Burger King, the Court used

that language and then cited World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 299 (1980), which held

that jurisdiction in Oklahoma was lacking when an

automobile sold in New York to New York residents

later became involved in an accident in Oklahoma; and

also Keeton v. Hustler Magazine, Inc., 465 U.S. 770,

774 (1984), where the Court reasoned that the regular

sale of magazines within a forum was not “random,

isolated, or fortuitous.” 471 U.S. at 475. One could imagine the movement of people meeting this standard—

for example, when a defendant passes through a forum

State while in transit—and while there engages in

some tangential suit-related conduct. But this Court

has never described conduct like the visits here—

which arose solely out of Cranfield’s contractual obligations to a forum resident—as “random, fortuitous,

or attenuated,” and this Court’s precedents provide no

support for that proposition.

The only proposition the Ninth Circuit (correctly)

took from Burger King is that merely contracting with

a forum resident is not enough to establish purposeful

28

availment; instead, the inquiry looks to the parties’

“prior negotiations and contemplated future consequences, along with the terms of the contract and the

parties’ actual course of dealing,” when “determining

whether the defendant purposefully established minimum contacts within the forum.” 471 U.S. at 479. But,

to be clear, nobody is arguing that merely contracting

with a forum resident is enough. Moreover, the proposition the Ninth Circuit relied on merely describes

what sources a court should consider when conducting

the purposeful availment inquiry; it does not override

this Court’s clear statement that a defendant that has

“created continuing obligations between himself and

residents of the forum . . . manifestly has availed himself of the privilege of conducting business there,”

which describes the focus of the inquiry. Id. at 476

(quotation marks omitted). And it certainly does not

cast doubt on the Court’s holding that purposeful

availment can be obtained “solely by mail and wire

communications,” if they “are purposefully directed toward residents of another State.” Id. (quotation marks

omitted).

Independent of the conflict with Burger King, this

Court’s decisions also strongly imply that when, as

here, a foreign defendant takes deliberate actions in

and toward a forum State that assist in the development and sale of a defective product in that State, jurisdiction is appropriate. For example, in Ford Motor

Co. v. Montana Eighth Judicial District Court, 141 S.

Ct. 1017, 1026 (2021), the losing defendant in a product liability action argued that jurisdiction could only

attach in the State where the defective vehicle was

sold, designed, or manufactured. This Court rejected

the argument by adopting an even broader conception

29

of personal jurisdiction—but the Court never suggested that the defendant’s examples were insufficient. Similarly, in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255, 259 (2017), the

Court found jurisdiction lacking, in part, because the

allegedly defective drug has not been developed or

manufactured in California, and the defendant did not

“work on the regulatory approval of the product in California,” either. The Court at least strongly suggested

that if the opposite were true, jurisdiction would attach.

Here, the ATLAS was designed, manufactured,

and sold in Idaho—and Cranfield played an important

role in each step of that process by helping Tamarack

secure necessary U.S. governmental regulatory approvals (including by supervising testing conducted in

Idaho), and then holding the FAA-issued STC for Tamarack’s benefit and approving the installation of the

part on aircraft in Idaho, including the accident aircraft. That is more than enough to satisfy the minimum contacts test under this Court’s precedents.

III.

The Question Presented Is Important

Certiorari should also be granted because the

question presented is important. Businesses frequently collaborate across state lines, and consumers

as well as industry need clear rules explaining when

an out-of-forum party is subject to jurisdiction in a

counterparty’s forum. As this case and the cited cases

show, this issue arises frequently, including in tort

cases based on defective products, other consumer

matters, as well as disputes involving contracts and

quasi-contracts. The Ninth Circuit’s opinion casts a

cloud of uncertainty over settled understandings,

30

making it difficult for businesses to understand the

implications of their conduct and for third parties to

determine where to sue. That is true regardless of the

Court’s ultimate view on the merits.

Beyond the sheer number of cases implicated, the

question presented is also qualitatively important because the existence of personal jurisdiction will often

be outcome-determinative—especially in cases, like

this one, involving foreign defendants. The upshot of

the Ninth Circuit’s ruling is that Cranfield likely cannot be sued anywhere in the United States—even

though Cranfield made hundreds of thousands of dollars by helping an Idaho company gain FAA certification to install products on aircraft in Idaho. In other

cases, too, plaintiffs’ access to a U.S. forum (and therefore to counsel of their choice, and a convenient forum

to litigate) will often hang in the balance.

31

CONCLUSION

The petition should be granted.

Respectfully submitted,

s/ Tejinder Singh

Thomas P. Routh

Michael S. McArdle

NOLAN LAW GROUP

20 N. Clark Street

30th Floor

Chicago, IL 60602

Attorneys for Petitioner

Maschmeyer

Joseph J. Slama

Krupnick Campbell

Malone

BUSER SLAMA HANCOCK, PA

12 SE 7th Street

Suite 801

Ft. Lauderdale, FL 33301

Attorneys for Petitioner

Davis

Tejinder Singh

Counsel of Record

SPARACINO PLLC

1920 L Street, NW

Suite 835

Washington, DC 20036

(202) 629-3530

tejinder@sparacinopllc.com

Attorney for Petitioners

David Katzman

Bruce Lampert

Bradley Stoll

KATZMAN, LAMPERT & STOLL

PLLC

9596 Metro Airport Avenue

Bloomfield, CO 80021

Attorneys for Petitioner

Johnson

APPENDIX

APPENDIX TABLE OF CONTENTS

Appendix A: Opinion of the Court of Appeals .......... 1a

Appendix B: Opinion of the District Court ............. 34a

Appendix C: Order Denying Rehearing .................. 54a

1a

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 22-35099

ERICA DAVIS, as Personal Representative of the

Estate of Andrew Dale Davis, deceased, and minor

children, JC, minor child, SD, minor child; MICHAEL

M. MASCHMEYER, as Personal Representative of

the Estate of R. Wayne Estopinal, deceased; JAMES

JOHNSON, individually and as Independent CoAdministrators of the Estate of Sandra Johnson,

deceased; BRADLEY HERMAN, individually and as

Independent Co-Administrators of the Estate of

Sandra Johnson, deceased,

Plaintiffs-Appellants,

v.

CRANFIELD AEROSPACE SOLUTIONS, LIMITED,

Defendant-Appellee

Appeal from the United States District Court for the

District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted November 9, 2022 Portland,

Oregon

Filed June 23, 2023

Before: Patrick J. Bumatay and Gabriel P. Sanchez,

Circuit Judges, and M. Miller Baker, * International

Trade Judge.

The Honorable M. Miller Baker, Judge for the United States

Court of International Trade, sitting by designation.

*

2a

Opinion by Judge Bumatay; Partial Dissent by Judge

Baker

OPINION

BUMATAY, Circuit Judge:

This case asks whether a federal court in Idaho

may exercise personal jurisdiction over an English

corporation in an action brought by plaintiffs from

Louisiana and Indiana for an accident that occurred

in Indiana. Because this case involves an out-of-state

accident, out-of-state plaintiffs, and an out-of-state

defendant with no minimum contacts with the state,

we say no.

I.

In November 2018, a Cessna Model 525

corporate jet tried to fly from Sellersburg, Indiana, to

Chicago, Illinois. It never made it to Chicago. It

crashed a few minutes after takeoff in Clark County,

Indiana. The pilot of the plane, Andrew Davis, and

the two passengers, R. Wayne Estopinal and Sandra

Johnson, were killed instantly.

Representatives for the three decedents brought

this wrongful death and product liability suit against

Cranfield Aerospace Solutions, LLC, in the District of

Idaho. These representatives include Erica Davis for

her late husband’s estate and for her minor children;

Michael Maschmeyer for the Estopinal estate; and

James Johnson and Bradley Herman for the Johnson

estate

(collectively,

the

“Appellants”).

The

representatives for Davis and Estopinal are residents

of Indiana, while Johnson’s representatives reside in

Louisiana. Cranfield is incorporated in and has its

principal place of business in England.

3a

Appellants allege that a load alleviation system,

the Tamarack Active Winglet Load System—

trademarked as the ATLAS system—caused the

plane crash. They believe that the ATLAS system’s

defective design caused the Cessna to deviate from its

flight path and hit trees and the ground in Indiana.

Tamarack Aerospace Group, Inc., a Washington State

corporation with its principal place of business in

Idaho, manufactured and installed the ATLAS system

on the Cessna in May 2018.

But before being allowed to install the ATLAS

system on planes within the United States,

Tamarack needed a special certification from the

Federal Aviation Administration (“FAA”)—known as

a supplemental type certification. This certification

allows the holder to modify airplanes from their

original design. This is where Cranfield comes into

the picture. Cranfield helped Tamarack obtain the

FAA supplemental type certification.

Tamarack and Cranfield had a preexisting

relationship. After Tamarack designed the ATLAS

system, it asked Cranfield for help in obtaining a

supplemental type certification from the European

equivalent of the FAA—the European Aviation Safety

Agency (“EASA”). In 2013, Tamarack contracted

Cranfield to provide services to attain an EASA

certificate for the ATLAS system. Cranfield oversaw

and provided technical assistance for the process to

obtain the certification. Cranfield acted as the point

of contact between the EASA and Tamarack.

Cranfield successfully obtained the EASA certificate

for Tamarack in 2015.

A year into the contract, Tamarack asked

4a

Cranfield to expand its scope to include obtaining an

FAA certificate for the ATLAS system. Once again,

Cranfield acted as the primary interface with the

agency. Cranfield was again successful—obtaining

the FAA certificate on behalf of Tamarack in 2016.

Tamarack then installed the ATLAS winglet system

on the Cessna in 2018. At the time of the crash,

Cranfield still held the FAA and EASA certificates for

Tamarack. After the crash, in 2019, Cranfield

transferred both certificates to Tamarack.

Appellants first sued Tamarack and Cranfield in

the Eastern District of Washington, alleging both

companies were liable for the crash under

Washington’s Product Liability Act. Cranfield moved

to dismiss for lack of personal jurisdiction, and

Appellants conceded that jurisdiction was lacking.

Cranfield was dismissed from the action, but the

litigation against Tamarack continued. That case is

still pending.

In November 2020, Appellants brought this

diversity action against Cranfield in the District of

Idaho under 28 U.S.C. § 1332(a). Appellants’

complaint alleges three causes of action under Idaho

state law: (1) liability under Idaho’s Product Liability

Reform Act; (2) negligence; and (3) willful and

reckless misconduct. Cranfield again moved to

dismiss for lack of jurisdiction. After permitting

jurisdictional discovery, the district court granted

Cranfield’s motion to dismiss for lack of personal

4 The court ruled that Appellants could

jurisdiction.

not establish specific jurisdiction over Cranfield.

This appeal followed, which we review de novo.

Glob. Commodities Trading Grp., Inc. v. Beneficio de

5a

Arroz Choloma, S.A., 972 F.3d 1101, 1106 (9th Cir.

2020).

II.

A.

Personal Jurisdiction: General and Specific

The central question here is whether a federal

court sitting in Idaho can exercise personal

jurisdiction over Cranfield, an English corporation.

To establish federal jurisdiction over a nonresident

defendant in a diversity suit, we look to both state

jurisdictional rules and the constitutional principles

of due process. Daimler AG v. Bauman, 571 U.S. 117,

125 (2014). We first look to state law to see how far

the state extends the bounds of its courts’ jurisdiction.

Id. We then make sure that the exercise of

jurisdiction would “comport[] with the limits imposed

by federal due process.” Id.

In this case, Idaho’s long-arm statute authorizes

the exercise of “all the jurisdiction available to the

State of Idaho under the due process clause of the

United States Constitution.” Lake v. Lake, 817 F.2d

1416, 1420 (9th Cir. 1987) (citing Doggett v. Elecs.

Corp. of Am., 93 Idaho 26, 30 (1969)); see also Idaho

Code § 5-514. So, for our purposes, jurisdiction under

state law and due process are coextensive.

Whether the exercise of jurisdiction satisfies due

process turns on “the nature and extent of the

defendant’s relationship to the forum State.” Ford

Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.

Ct.

1017,

1024

(2021) (simplified). “Since

International Shoe, the rule has been that a state

court can exercise personal jurisdiction over a

6a

defendant if the defendant has ‘minimum contacts’

with the forum—which means that the contacts must

be ‘such that the maintenance of the suit does not

offend ‘traditional notions of fair play and substantial

justice.’” Id. at 1032 (Alito, J., concurring) (quoting

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)). Given this focus on forum state contacts,

jurisdiction comes in two forms: general jurisdiction

and specific jurisdiction. Id. at 1024.

General

jurisdiction—or

“all-purpose”

jurisdiction— comes into play when a defendant is

“essentially at home” in the forum state. Id. For

corporations, this type of extensive contact generally

means the company’s place of incorporation and its

principal place of business. Id. Such jurisdiction

extends over “any and all claims” against the

defendant concerning “events and conduct anywhere

in the world.” Id.

Specific jurisdiction, on the other hand, permits

jurisdiction over a defendant “less intimately

connected” with a forum state. Id. To assert specific

jurisdiction, the defendant must have “take[n] some

act by which it purposefully avails itself of the

privilege of conducting activities within the forum

State.” Id. (simplified). But given the more limited

contacts with the forum state, this type of jurisdiction

is “case-linked,” only covering a “narrower class of

claims.” Id. To comply with due process, the

plaintiff’s claims “must arise out of or relate to the

defendant’s contacts with the forum.” Id. at 1025

(simplified).

Our court uses a three-part test to determine

whether specific jurisdiction exists:

7a

(1) The non-resident defendant must

purposefully direct his activities or

consummate some transaction with

the forum or resident thereof; or

perform some act by which he

purposefully avails himself of the

privilege of conducting activities in

the forum, thereby invoking the

benefits and protections of its laws;

(2) the claim must be one which arises

out of or relates to the defendant’s

forum-related activities; and

(3) the exercise of jurisdiction must

comport

with

fair

play

and

substantial justice, i.e. it must be

reasonable.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 802 (9th Cir. 2004) (quoting Lake, 817 F.2d at

1421). The plaintiff bears the burden of meeting the

first two prongs while the defendant shoulders the

burden on the final prong. Id. All three prongs must

be met to exercise personal jurisdiction over the

defendant. Id.

Only specific jurisdiction is at issue here.

B.

Purposeful Direction v. Purposeful Availment

Before turning to application of the specificjurisdiction test, we start with a word about the first

prong—the “purposeful availment” prong. In the

past, we’ve suggested that we evaluate this prong

“somewhat differently” depending on whether the

8a

case involves tort or contract claims. Yahoo! Inc. v.

La Ligue Contre Le Racisme Et L’Antisemitisme, 433

F.3d 1199, 1205–06 (9th Cir. 2006) (en banc). As

we’ve said, the prong incorporates two distinct

concepts—“purposeful direction” and “purposeful

availment.” Id.; see also Schwarzenegger, 374 F.3d at

802. The “purposeful direction” test “typically”

applies to tort claims while the “purposeful

availment” test “typically” applies to contract cases.

See Yahoo! Inc., 433 F.3d at 1206; see also Picot v.

Weston, 780 F.3d 1206, 1212 (9th Cir. 2015) (stating

that we “generally” apply purposeful availment to

claims sounding in contract). While our precedent

mentions what “typically” happens, we have never

held that this line is a hard-and-fast rule. Rather,

“our cases do not impose a rigid dividing line between

these two types of claims.” Glob. Commodities, 972

F.3d at 1107. Indeed, the first prong “may be

satisfied by purposeful availment,” “by purposeful

direction,” or “by some combination thereof.” Yahoo!

Inc., 433 F.3d at 1206.

After all, a “rigid dividing line” doesn’t serve the

purposes of due process. “[B]oth purposeful

availment and purposeful direction ask whether

defendants have voluntarily derived some benefit

from their interstate activities such that they will not

be haled into a jurisdiction solely as a result of

random, fortuitous, or attenuated contacts.” Glob.

Commodities, 972 F.3d at 1107 (simplified). So

there’s no need to adhere to an iron-clad doctrinal

dichotomy to analyze specific jurisdiction. Rather,

when considering specific jurisdiction, courts should

comprehensively evaluate the extent of the

defendant’s contacts with the forum state and those

9a

contacts’ relationship to the plaintiffs’ claims—which

may mean looking at both purposeful availment and

purposeful direction.

Thus, to the extent Cranfield argues that we

should only review Appellants’ tort claims under the

purposeful direction test, we disagree. We think it

appropriate to look at both approaches in

determining jurisdiction over Cranfield. But under

either approach, jurisdiction over Cranfield in Idaho

is lacking.

C.

No Purposeful Direction in Idaho

Start with the purposeful direction test. We

evaluate purposeful direction under the three-part

“effects” test from Calder v. Jones, 465 U.S. 783, 789–

90 (1984): the defendant must have allegedly “(1)

committed an intentional act, (2) expressly aimed at

the forum state, (3) causing harm that the defendant

knows is likely to be suffered in the forum state.”

Yahoo!, 433 F.3d at 1206 (quoting Schwarzenegger,

374 F.3d at 803). An action may be directed at a forum

state even if it occurred elsewhere. Morrill v. Scott

Fin. Corp., 873 F.3d 1136, 1142 (9th Cir. 2017). This

analysis is driven by the defendant’s contacts with

the forum state—not the plaintiff’s or other parties’

forum connections. Walden v. Fiore, 571 U.S. 277,

289 (2014); Bristol-Myers Squibb Co. v. Superior Ct.

of Cal., S.F. Cnty., 582 U.S. 255, 265 (2017).

The purposeful direction test cannot support

jurisdiction here because Appellants fail to allege

that Cranfield injured them in Idaho. “Harm suffered

in the forum state is a necessary element in

10a

establishing purposeful direction.” Morrill, 873 F.3d

at 1144. As alleged, the harms to Appellants

occurred in Indiana, where the plane crash killed

their loved ones, or in Indiana and Louisiana, where

they resided when the crash occurred. Under the

purposeful direction test, haling Cranfield into court

in Idaho for a harm that was suffered elsewhere does

not satisfy due process. Because this lack of forumstate harm is dispositive, we need not address the

other elements of the purposeful direction test.

D.

No Purposeful Availment in Idaho

While closer, purposeful availment leads to the

same result. To establish purposeful availment, we

look at a defendant’s “entire course of dealing” with

the forum state— “not solely the particular contract

or tortious conduct giving rise to [a plaintiff’s] claim.”

Glob. Commodities, 972 F.3d at 1108. It exists when

a defendant’s dealings with a state establishes a

“quid pro quo”—where the defendant “purposefully

avails itself of the privilege of conducting activities

within the forum State, thus invoking the benefits

and protections of its laws,” and in return “submit[s]

to the burdens of litigation” in the State.

Schwarzenegger, 374 F.3d at 802 (simplified). In

other words, we examine whether the defendant

“deliberately reached out beyond [its] home—by, for

example, exploiting a market in the forum State or

entering a contractual relationship centered there.”

Yamashita v. LG Chem, Ltd., 62 F.4th 496, 503 (9th

Cir. 2023) (simplified). The “unilateral activity” of

another party does not meet this standard. Id.

Purposeful availment can be established by a

11a

contract’s negotiations, its terms, its contemplated

future consequences, and the parties’ actual course of

dealing. Burger King Corp. v. Rudzewicz, 471 U.S.

462, 479 (1985).

Looking at these factors, we agree with the

district court that Appellants failed to establish that

Cranfield purposefully availed itself of the benefits

and protections of Idaho. While Tamarack is an

Idaho resident, there’s no evidence that Cranfield

sought out Tamarack in Idaho or benefitted from

Tamarack’s residence in Idaho. Neither the contract’s

negotiations, terms, nor contemplated consequences

establish that Cranfield formed a substantial

connection with Idaho. And while the course of

dealings show that Cranfield employees entered

Idaho several times, those transitory trips into the

forum state do not sufficiently reflect purposeful

availment.

Contract Negotiations. At the time that

Tamarack contacted Cranfield about the ATLAS

Winglet project in early 2012, Cranfield had no

offices, facilities, employees, or agents in the United

States. It never advertised or marketed services in

Idaho. Appellants do not allege that Cranfield had

any Idaho contacts before its contract with

Tamarack. And Cranfield did not solicit the business

with Tamarack. Instead, Tamarack initiated contact

with Cranfield by phone and email. Negotiations

between the two parties continued remotely, although

there was one in-person meeting in England,

Cranfield’s headquarters. During negotiations,

Cranfield let Tamarack know that all Cranfield staff

working on the project would be based in the United

Kingdom. So nothing in the contract negotiation

12a

reflects Cranfield’s intent to avail itself of Idaho’s

laws. See Sher v. Johnson, 911 F.2d 1357, 1363 (9th

Cir. 1990) (finding no purposeful availment in the

course of negotiations when defendant “is solicited in

its home state and takes no affirmative action to

promote business within the forum state”).

Contract Terms. None of the contract terms

invoke the laws of Idaho. Instead, by its terms, New

York law governs the contract’s enforcement and

interpretation. The agreement also selects New York

as its choice of forum. The closest the contract gets to

referring to Idaho is that Cranfield may “witness” any

tests associated with the project and Cranfield will

have access to Tamarack’s facility “as and when

necessary.” This suggests some contact with Idaho

given that Tamarack’s facility is in Idaho, but the

contract is permissive—not mandatory—and does not

specify whether Cranfield must “witness” any tests in

person. Given that the overall purpose of the contract

terms was to obtain a certification from European

aviation authorities and the FAA, which is

headquartered in Washington, D.C., we think the

contract terms count against finding purposeful

availment in Idaho. See Burger King, 471 U.S. at 478

(entering a contract with a forum state resident is not

enough in itself to establish minimum contacts).

Contemplated

Consequences.

The

contemplated consequences of the contract do not

change the analysis. Nothing in the contract’s

contemplated consequences suggests that Cranfield

sought to benefit from Idaho’s laws. Once again, the

contract contemplated that Cranfield would provide

technical assistance in obtaining certifications from

the EASA and the FAA and serve as Tamarack’s

13a

main representative to those agencies. Even while

delegating those functions to Cranfield, Tamarack

remained responsible for developing and coordinating

all engineering and certification testing. The

strongest fact for Appellants is that the contract

contemplated that Cranfield would hold the EASA

and FAA supplemental type certification on behalf of

Tamarack. Indeed, Cranfield held the certifications

on behalf of Tamarack at the time of the crash. But

we do not think such a legal obligation in itself

establishes purposeful availment in Idaho. Cf. Sher,

911 F.2d at 1362 (“normal incidents of [legal]

representation” of an in-forum client do not by

themselves establish minimum contacts). This is

especially true when Tamarack remained responsible

for any modifications to the FAA certification and any

testing or analysis necessary for the modifications.

Actual Course of Dealings. This leaves

Cranfield’s actual course of dealing with Tamarack

in Idaho, which presents a somewhat closer question.

Appellants allege that Cranfield employees engaged

in several telephone calls, emails, and other

correspondence with individuals in Idaho related to

the design and safety aspects of Tamarack’s ATLAS

system. While remaining in England, Cranfield

employees provided Tamarack technical advice and

assistance and helped them develop procedures and

analysis to obtain the EASA and FAA certifications.

Throughout each of these activities, Cranfield and its

employees worked in the United Kingdom. In return,

Tamarack compensated Cranfield from Idaho.

We have explained that “the fact that a contract

envisions one party discharging his obligations in the

forum state cannot, standing alone, justify the

14a

exercise of jurisdiction over another party to the

contract.” Picot, 780 F.3d at 1213. And remote

actions taken to service a contract in the forum state

seldom lead to purposeful availment by themselves.

See Sher, 911 F.2d at 1362 (explaining that, without

more, out-of-state contacts by mail and phone and

payments sent from forum state did not establish “the

deliberate creation of a ‘substantial connection’” with

the forum state). Thus, Cranfield’s remote work on

behalf of Tamarack’s ATLAS project does not,

without more, establish purposeful availment.

But Appellants don’t rely solely on Cranfield’s

remote work. Besides Cranfield’s remote activities,

Appellants point to two trips by Cranfield employees

to Tamarack’s Idaho facility as part of the contract.

First, after the contract was executed, Cranfield’s

head of design traveled to Idaho in 2013. During this

three-day trip, he met with Tamarack’s developers of

the ATLAS winglet system, observed a working

prototype, and held several meetings with Tamarack

engineers to learn more about the system. He also

spent time going through the regulations necessary

for obtaining a European certificate for the ATLAS

system and worked with Tamarack to plan the

certification process.

Appellants also highlight a 2017 trip by

Cranfield’s chief stress engineer to observe a “critical

stage” of testing of the ATLAS system. The purpose

of the week-long Idaho visit was to determine

whether Tamarack’s test protocols and test results

complied with the EASA and FAA regulations. The

Cranfield engineer’s role was to later validate the test

reports while in the United Kingdom or in Idaho, but

he also had the authority to request a retest while in

15a

Idaho if something had gone wrong.

“While physical entry into the State is certainly a

relevant contact, a defendant’s transitory presence

will support jurisdiction only if it was meaningful

enough to create a substantial connection with the

forum State.” Picot, 780 F.3d at 1213 (simplified). In

Picot, we examined whether an out-of-state

defendant’s forays into the forum state established

purposeful availment. There, the defendant made two

trips to California to assist with presentations given

to potential clients at the plaintiffs’ request and

expense. Id. Both trips lasted about two weeks, but

the defendant’s role in the presentations was

“relatively small.” Id. We declined to find a

substantial connection with California under those

facts. We determined that the two trips had “no

special place” in the performance of the plaintiffs’

contract “as a whole.” Id. They were not part of the

initial agreement between the parties. Id. And the

defendant had performed the “bulk of his efforts” outof-state and met with clients and plaintiffs outside of

California. Id. At most, we held, the trips were

“random, fortuitous, or attenuated” contacts with the

forum state. Id. And we reached the same

conclusion in other cases. See Sher, 911 F.2d at

1363; Omeluk v. Langsten Slip & Batbyggeri A/S, 52

F.3d 267, 271 (9th Cir. 1995).

Our recent decision in Silk v. Bond, 65 F.4th 445

(9th Cir. 2023), does not change our analysis. While

Silk shows that physical travel to the forum state

may not be necessary to establish purposeful

availment, it illustrates the level of substantial

connections under a contractual relationship that

may suffice. Id. at 456–57. There, the defendant

16a

sought out a contractual relationship in the forum

state that would require all related work to take place

in that state. Id. at 457. The contract referenced the

forum state and the defendant paid into forum-state

bank accounts, mailed paper copies of relevant

documents to the forum state each month for two

decades, and at times sent family members to the

forum state for contract-related meetings on his

behalf. Id. at 456. In comparison, Cranfield’s

interactions with Idaho are far more random,

fortuitous, and attenuated, making this case more

like Picot than Silk.

Given this precedent, we conclude that the two

trips by Cranfield employees to Idaho were too

attenuated to establish minimum contacts with the

State. As in Picot, the employees traveled at

Tamarack’s request and expense, and the trips did

not suggest a “special place” in Cranfield’s years-long

performance of its contract with Tamarack. Picot, 780

F.3d at 1213. While observing testing of the ATLAS

system is important, the record shows that approval

of the testing could have occurred in the United

Kingdom. And it is undisputed that the bulk of

Cranfield’s work under the contract took place in that

country.

So none of Cranfield’s actual course of dealings in

Idaho was so substantial or widespread that it

reflects Cranfield’s attempt to gain the “benefits and

protections” of the forum state.

***

Because Appellants’ allegations fail to establish

that Cranfield had sufficient minimum contacts with

Idaho, we decline to proceed to the remaining two

17a

prongs of the specific jurisdiction test.

In one last try, Appellants ask us to find specific

jurisdiction based on public policy concerns. They

argue that the United States’ interest in regulating

and promoting safety in the aviation industry favors

asserting jurisdiction over Cranfield here. Without

Cranfield’s actions to obtain the FAA certificate here,

Appellants contend that the plane crash would not

have happened. While we are mindful that this

appeal stems from tragic circumstances, that does

not give us license to dispense with constitutional

requirements.

III.

Because this case involves out-of-state conduct

by an out-of-state defendant and an out-of-state

harm, the district court properly declined to exercise

jurisdiction over Cranfield.

AFFIRMED.

BAKER, Judge, dissenting in part:

I join Parts I, II.A., II.B. except for its final

sentence, and II.C. of the panel’s opinion. I part

company, however, with the majority’s conclusion

that Plaintiffs did not demonstrate that the U.K.based

Cranfield

Aerospace

Solutions,

Ltd.,

purposefully availed itself of the forum state, Idaho.

In my view, they lopsidedly carried that burden by

showing that Cranfield undertook continuing

obligations entailing substantial activity directed

toward Tamarack Aerospace Group, Inc., in Idaho for

over six years.

18a

I

To constitute “purposeful availment,” the

defendant’s contacts with the forum state must

“proximately result from actions by the defendant

himself that create a substantial connection with”

that state. Burger King Corp. v. Rudzewicz, 471 U.S.

462, 475 (1985) (cleaned up). The question is whether

“the defendant’s conduct . . . form[s] the necessary

connection with the forum State.” Walden v. Fiore, 571

U.S. 277, 285 (2014) (emphasis added). Because “an

individual’s contract with an out-of-state party alone”

cannot subject the individual to the jurisdiction of the

other party’s home state, Burger King, 471 U.S. at 478

(emphasis removed), when the defendant has a

contractual relationship with a forum resident, a

court must look to “prior negotiations and

contemplated future consequences, along with the

terms of the contract and the parties’ actual course of

dealing.” Id. at 479. Essential to this inquiry is

whether the contract creates “continuing obligations

between [the defendant] and residents of the forum.”

Id. at 476 (cleaned up).

In our cases applying Burger King over the last 38

years, a clear principle emerges: A nonresident

purposefully avails itself of the forum state when it

undertakes (1) continuing obligations (2) entailing

some meaningful activity directed toward or

producing effects in the forum. See, e.g., Silk v. Bond,

65 F.4th 445, 457 (9th Cir. 2023) (holding that a

nonresident who engaged a California financial

planner in “a multi-year business relationship”

purposefully availed himself of that state by

“creat[ing] ‘continuing [payment] obligations’ ” to the

planner) (citing Hirsch v. Blue Cross, Blue Shield of

19a

Kan. City, 800 F.2d 1474, 1478 (9th Cir. 1986)), pet.

for cert. filed, No. 22-1167 (U.S. June 2, 2023); Glob.

Commodities Trading Grp., Inc. v. Beneficio de Arroz

Choloma, S.A., 972 F.3d 1101, 1108 (9th Cir.

2020) (Honduras importer purposefully availed itself

of the California forum by “ ‘creat[ing] continuing

relationships and obligations with citizens of’ ” that

state “over several years” through “payments on . . .

contracts” for sales of grain) (quoting Burger King,

471 U.S. at 473); Columbia Pictures Television v.

Krypton Broad. of Birmingham, Inc., 106 F.3d 284,

289 (9th Cir. 1997) (nonresident licensee of California

television producer purposefully availed itself of that

state by creating “continuing obligations” to pay

producer) (quoting Burger King, 471 U.S. at 476),

rev’d on other grounds sub nom. Feltner v. Columbia

Pictures Television, Inc., 523 U.S. 340 (1998); Ballard

v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)

(Austrian bank merely holding accounts of American

citizens satisfied purposeful availment by its

“continuing obligations to forum residents”); Roth v.

Garcia Marquez, 942 F.2d 617, 621–22 (9th Cir. 1991)

(Mexican author’s sale of film rights to a California

movie producer satisfied purposeful availment by

creating “continuing relationships and obligations”

that “would have continuing and extensive

involvement with the forum,” even though the

producer solicited the author, whose visits to the

forum were minor); Sher v. Johnson, 911 F.2d 1357,

1362–64 (9th Cir. 1990) (Florida law firm

representing California clients in Florida litigation

purposefully availed itself of California through its

partners’ travel to the forum, communications with

those clients, and encumbrance of the clients’ forum

property); Hirsch, 800 F.2d at 1479–80 (nonresident

20a

insurer purposefully availed itself of California forum

by accepting “a continuing obligation” to cover

insureds in that state, even though the insurer did

not solicit the business and never visited the forum);

Haisten v. Grass Valley Med. Reimbursement Fund,

Ltd., 784 F.2d 1392, 1397–1400 (9th Cir. 1986) (same,

with the added fact that the policies were governed

by Cayman Islands law).

On the other hand, if a nonresident’s contract

with a forum resident does “not create any ongoing

obligations,” purposeful availment does not exist.

Boschetto v. Hansing, 539 F.3d 1011, 1017 (9th Cir.

2008) (emphasis added); cf. Glob. Commodities, 972

F.3d at 1108 (observing that a “fleeting” business

relationship cannot support purposeful availment).

And even if a nonresident’s contract with a forum

resident does involve continuing obligations,

purposeful availment is not satisfied if the

nonresident’s obligations do not entail any significant

activity toward, or create effects within, that forum.

For example, in Picot v. Weston, 780 F.3d 1206 (9th

Cir. 2015), we held that a nonresident defendant did

not purposefully avail himself of the California

forum, despite his continuing obligations under an

alleged contract with forum residents, because he did

not “perform[ ] some type of affirmative conduct

which allows or promotes the transaction of business

within the forum state.” Id. at 1212 (emphasis added)

(quoting Sher, 911 F.2d at 1362). His work under the

agreement was performed in Michigan, that work

was not directed toward California in any significant

way, and his two visits to California were not

“envisioned in the initial oral agreement” and “h[e]ld

no special place in his performance under the

21a

agreement as a whole.” Id. at 1213.

II

The majority concludes that neither the

contract’s negotiations, terms, and contemplated

consequences nor the parties’ actual course of dealing

created a substantial connection with Idaho. I

disagree because the 2013 contract created, and the

parties’ course of dealing reflected, continuing and

meaningful Idaho-facing obligations by Cranfield

until 2019 when the British company transferred the

ATLAS certification to Tamarack.

Contract Negotiations. The majority observes

that Tamarack solicited Cranfield’s services. Opinion

at 15. That fact carries little weight, however, when

measured against the latter’s significant activity

directed toward Idaho. In several cases we have

found that a defendant purposefully availed itself of

the forum by undertaking continuing obligations

entailing some activity directed at that jurisdiction,

even though the forum resident initiated the business

relationship. See, e.g., Sher, 911 F.2d at 1362; 1

Roth, 942 F.2d at 621–22; Hirsch, 800 F.2d at 1479–

80; and Haisten, 784 F.2d at 1397–98.

The majority cites Sher as an example of no purposeful

availment when a forum resident solicits a business relationship

with the defendant. Opinion at 15. But we found purposeful

availment in that case, even though forum residents solicited

the defendant law firm, because the “entire course of dealing”

there created a “significant contact” with the forum through

partner visits, communications with the forum residents, and an

encumbrance of the clients’ forum property to secure payment.

Sher, 911 F.2d at 1363–64 (cleaned up). As explained below,

Cranfield’s contacts with the Idaho forum are qualitatively

stronger than what sufficed for purposeful availment in Sher.

1

22a

Contract Terms. My colleagues conclude that the

contract’s terms don’t support Cranfield’s purposeful

availment of Idaho. They first point to the contract’s

choice-of-law and forum-selection clauses, neither of

which invokes Idaho. Opinion at 15.

“While [a choice-of-law] provision should not be

ignored in determining purposeful availment, it alone

will not suffice to block jurisdiction in the [forum

state] where other facts indicate that the [defendant]

has purposefully directed its activities toward [forum

residents].” Haisten, 784 F.2d at 1400. Thus, in

Haisten we held that an insurer purposefully availed

itself of the forum when it “directed its activities

toward California residents” by covering them, even

though the insurance contracts were governed by

Cayman Islands law. Id.

So if Cranfield continuously directed meaningful

activities toward Tamarack in Idaho, that the

contract was governed by New York law counts for

little. “The issue is personal jurisdiction, not choice of

law. It is resolved . . . by considering the acts of the

[defendant]” aimed at the forum, Hanson v. Denckla,

357 U.S. 235, 254 (1958), and whether those acts

“allow[ed] or promote[d] the transaction of business

within the forum state,” Picot, 780 F.3d at 1212. 2

In my view, a forum-selection clause has no probative value in

determining whether a defendant’s contract performance

constitutes purposeful availment of the forum for purposes of a

third party’s claim arising out of that performance. Although

parties “can, through forum selection clauses and the like, easily

contract around” personal jurisdiction rules, RAR, Inc. v. Turner

Diesel, Ltd., 107 F.3d 1272, 1280 (7th Cir. 1997), such actions do

not bind nonparties.

2

23a

The majority then brushes past the contract’s

substantive terms: “The closest the contract gets to

referring to Idaho is that Cranfield may ‘witness’ any

tests” and “have access to Tamarack’s facility ‘as and

when necessary.’ ” Opinion at 15. According to the

majority, this “suggests some contact with Idaho . . . ,

but the contract is permissive—not mandatory—and

does not specify whether Cranfield must ‘witness’ any

tests in person.” Id. at 15–16.

By only considering contractual terms referring

to physical contacts by Cranfield with Idaho, the

majority implies that those are the only contacts

relevant to purposeful availment. “Jurisdiction,”

however, “may not be avoided merely because the

defendant did not physically enter the forum State.”

Burger King, 471 U.S. at 476 (emphasis in original).

Instead, remote “entry” into a state through “goods,

mail, or some other means . . . is certainly a relevant

contact.” Walden, 571 U.S. at 285; 33 see also

Boschetto, 539 F.3d at 1019 (recognizing that a

defendant that never actually enters the state but

employs technological “means for establishing regular

business with a remote forum” may be subject to

personal jurisdiction).

My colleagues do not acknowledge the contract’s

In 1985, a decade before the advent of the modern internet,

which exponentially expanded the technological means for

remote entry into a jurisdiction, the Burger King Court observed

that “it is an inescapable fact of modern commercial life that a

substantial amount of business is transacted solely by mail and

wire communications across state lines, thus obviating the need

for physical presence within a State in which business is

conducted.” 471 U.S. at 476.

3

24a

terms mandating continuing contacts with Idaho that

Cranfield could perform either in-person or remotely,

much less the strong “quality and nature” of those

contacts. Burger King, 471 U.S. at 480 (quoting

Hanson, 357 U.S. at 253).

Cranfield’s obligations under the first phase of

the parties’ contract were entirely Idaho-facing. They

required it to “oversee” Tamarack in their “work

together to draft and finalize” two “deliverables,”

beginning with “a mutually agreeable Certification

Plan” for the Idaho company’s ATLAS system,

followed later by a “mutually agreeable application”

for that system, “including all supporting data and

documentation” necessary in “Cranfield’s professional

opinion.” 4 In short, the two companies partnered—

with Cranfield acting as the senior partner because it

would “oversee” the junior partner’s work in Idaho—to

produce the two “deliverables” necessary to apply for

certification of the ATLAS system.

In supervising Tamarack’s Idaho work on these

deliverables, the contract’s terms required Cranfield

to “approv[e] . . . test schedules and reports provided

by Tamarack” (emphasis added), “define and outline

certification requirements to Tamarack personnel” in

Idaho (emphasis added), provide input to Tamarack’s

preparation of “draft Flight Test Plans and Test

Plans” in Idaho and then “review, check and submit”

those plans (emphasis added), and “ensure”

Tamarack’s “compliance with all applicable laws and

regulations relating to the . . . certification process.”

Because the contract’s terms gave the British

The Certification Plan was to be included in the supporting

data and documentation submitted with the application.

4

25a

company “access to Tamarack’s facility as and

when

necessary,” Cranfield could supervise

Tamarack remotely and/or in person.

And after the contract’s “deliverables” were

ready to submit, the contract’s second phase required

Cranfield to “apply” for certification in its name

because Tamarack was not “qualified” to do so.

Following aviation officials’ approval of the

application, the contract’s third phase required

Cranfield to “hold[ ] and/or maintain[ ]” the

certification—a valuable right—“for Tamarack’s

benefit.”

As the certification holder, Cranfield’s approval

was necessary for Tamarack to install the ATLAS

system on any aircraft. See 14 C.F.R. § 21.120

(providing that a “supplemental type certificate

holder who allows a person to use the supplemental

type certificate to alter an aircraft, aircraft engine, or

propeller must provide that person with written

permission acceptable to the FAA”). The former’s

remote holding of this certification and approval of

the latter’s installation of the ATLAS system on the

accident aircraft was Idaho-facing much as the

remote provision of insurance coverage to forum

residents in Hirsch and Haisten was forum-facing.

In sum, the contract’s terms “created a multiyear

business

relationship

‘that

envisioned

continuing and wide- reaching contacts’ ” by

Cranfield with Tamarack in Idaho. Silk, 65 F.4th at

457 (quoting Burger King, 471 U.S. at 480); see also

Roth, 942 F.2d at 622 (purposeful availment satisfied

when a contract requires the defendant to have

“continuing and extensive involvement with the

26a

forum”). Thus, Cranfield “not only could foresee that

its actions would have an effect in [Idaho], but also

that the effect was ‘contemplated and bargained for.’ ”

Hirsch, 800 F.2d at 1479 (quoting Haisten, 784 F.2d

at 1398).

The majority’s second reason for dismissing the

contract’s terms—that their “overall purpose” was to

obtain certification for Tamarack’s ATLAS system

from aviation regulatory authorities in Europe and

America, Opinion at 16—doesn’t tell the full story.

Obtaining certification alone was useless to

Tamarack because it was not qualified to hold that

status; it needed Cranfield not only to apply for

certification, but also to then hold it so that the Idaho

company could then sell and install the ATLAS

system on third-party aircraft in Idaho under the

British company’s tutelage.

In any event, the contract’s “overall purpose” is

irrelevant to personal jurisdiction. What matters,

instead, is whether the contract required “acts of the

[defendant]” directed toward the forum. Hanson, 357

U.S. at 254. As explained above, the contract’s terms

did exactly that, in spades.

Finally, Sher would have come out the other way

if we had applied the reasoning that the majority

employs here. In that case, the “overall purpose” of

the business relationship between the defendant law

firm and the California clients was to represent the

latter in Florida litigation. Even so, we held that the

law firm purposefully availed itself of California

through its actions directed toward that state—

partner visits for meetings, communications with its

clients, and its encumbrance of its client’s forum

27a

property. See 911 F.2d at 1362–64.

Contemplated Consequences. My colleagues

contend that “[n]othing in the contract’s contemplated

consequences suggests that Cranfield sought to

benefit from Idaho’s laws,” because the contract

merely “contemplated that Cranfield would provide

technical assistance in obtaining [regulatory]

certifications . . . and serve as Tamarack’s main

representative” to the relevant agencies, while

“Tamarack remained responsible for developing and

coordinating all engineering and certification

testing.” Opinion at 16.

The majority again turns a blind eye toward

Cranfield’s duty to supervise all of Tamarack’s work

under the contract, which had foreseeable

consequences in Idaho. And although “Tamarack

remained responsible for any modifications to the

FAA certification and any testing or analysis

necessary for the modifications,” id., Cranfield in turn

was responsible for overseeing and approving that

work because the certification was in its name. See 14

C.F.R. § 21.120.

And quite apart from its supervision of

Tamarack’s work, Cranfield’s holding of the

certification also had foreseeable consequences in

Idaho: Tamarack’s installation of the ATLAS system

on the accident aircraft. The majority, though,

minimizes the significance of Cranfield so holding the

certification at the time of the installation and later

accident, comparing it to the out-of-state legal

representation in Sher. Opinion at 16.

This analogy is unpersuasive. Cranfield’s holding

the certification once granted—a valuable property

28a

right—is more properly analogized to the Austrian

bank’s holding of deposit accounts in Ballard, which

we held satisfied purposeful availment. See 65 F.3d at

1498; 5 cf. Haisten, 784 F.2d at 1398 (“A defendant

who enters into an obligation which she knows will

have effect in the forum state purposely avails herself

of the privilege of acting in the forum state.”).

Actual Course of Dealing. The majority concludes

that the parties’ course of dealing does not support

purposeful availment because “remote actions taken

to service a contract in the forum state seldom lead to

purposeful availment by themselves.” Opinion at 17

(citing Sher, 911 F.2d at 1362). Thus, they reason,

“Cranfield’s remote work on behalf of Tamarack’s

ATLAS project does not, without more, establish

purposeful availment.” Id.

This sweeping generalization ignores the

Supreme Court’s “reject[ion of] the notion that an

absence of physical contacts can defeat personal

jurisdiction,” Burger King, 471 U.S. at 476, to say

nothing of circuit precedent stating that what

matters is not whether a defendant’s contacts with

the forum under a contract with continuing

obligations were remote or physical, see, e.g., Haisten,

784 F.2d at 1399 (holding that the defendant

Indeed, consider a counterfactual where Cranfield breached its

obligation to transfer the certification to Tamarack when the

latter was finally eligible to hold it. Given that forum-selection

clauses are unenforceable against Idaho residents as matter of

public policy, see Idaho Code § 29-110, in such circumstances a

court in that state could surely exercise personal jurisdiction

over Cranfield for the same reasons that we held a California

court could permissibly exercise jurisdiction over the Austrian

bank in Ballard.

5

29a

purposefully availed itself of the forum state despite

“no physical contacts between the forum state and the

defendant”) (emphasis in original); Hirsch, 800 F.2d

at 1480 (same), but instead the “ ‘quality and nature’

of the relationship created by the contract.” Haisten,

784 F.2d at 1399 (quoting Burger King, 471 U.S. at

480).

Moreover, the majority misapprehends Sher. The

Florida law firm’s communications with its California

clients, even when coupled with partner visits to the

forum, were relatively weak contacts not because they

were remote as the majority implies, but rather

because they involved no “affirmative conduct which

allows or promotes the transaction of business within

the forum state,” which is the relevant inquiry. Sher,

911 F.2d at 1362 (quoting Sinatra v. Nat’l Enquirer,

Inc., 854 F.2d 1191, 1195 (9th Cir. 1988)). But when

conjoined with the law firm’s remote encumbrance of

the clients’ forum property, those contacts collectively

created a “substantial [enough] connection with

California for jurisdictional purposes.” Id. at 1363

(cleaned up).

In comparison to Sher, the quality of Cranfield’s

contacts with the Idaho forum is much stronger

because the British company “direct[ly] supervis[ed]

and control[led]” Tamarack’s on-the-ground Idaho

activities in their joint production of the deliverables

necessary for the certification application. Int’l Shoe

Co. v. Washington, 326 U.S. 310, 313 (1945). To that

end, Plaintiffs allege in uncontroverted allegations

that we must accept as true, see Lang Van, Inc. v.

VNG Corp., 40 F.4th 1034, 1038 (9th Cir. 2022),

cert. denied, No. 22-937, 2023 WL 3696150, at *1

(U.S. May 30, 2023), that Cranfield gave “substantial

30a

and frequent engineering advice and opinions . . .

relating to the design, function, and safety aspects” of

the ATLAS system and “worked jointly with

[Tamarack] to develop materials, procedures, and

data to be used in support of” the certification

applications. And even after aviation authorities

granted certification, Cranfield remained on the

Idaho scene to supervise and approve modifications to

the certification and Tamarack’s installations of the

ATLAS system. Following its installation on the

accident aircraft in May 2018, Cranfield continued to

provide “customer support and engineering services

related to” that system until the fatal crash in

November 2018.

To my knowledge, no federal court—until

today—has ever held that continuous supervision or

management of forum-state activities is insufficient

to establish personal jurisdiction. To the contrary,

and as Sher illustrates, we have repeatedly held that

continuing remote contacts of much lower quality are

enough to sustain such jurisdiction. See also Silk, 65

F.4th at 457 (payments for services, coupled with

occasional visits and shipments of records); Glob.

Commodities, 972 F.3d at 1108 (payments for goods);

Columbia Pictures, 106 F.3d at 289 (payments for

television programing licensing rights); Roth, 942

F.2d at 621–22 (licensing film rights).

If merely making payments or licensing film

rights to a forum state resident in connection with a

contract’s continuing obligations is purposeful

availment, then surely controlling ongoing activities

in the forum state is as well, as both the Supreme

Court and our sister circuits have recognized. See,

e.g., Daimler AG v. Bauman, 571 U.S. 117, 135 n.13

31a

(2014) (“[A] corporation can purposefully avail itself

of a forum by directing its agents or distributors to

take action there.”); Int’l Shoe, 326 U.S. at 313, 320

(by “direct[ly] supervis[ing] and control[ling]” sales

personnel in the forum state, the defendant “received

the benefits and protection of the laws of the state”

for purposes of specific jurisdiction); Schwab ShortTerm Bond Mkt. Fund v. Lloyds Banking Grp. PLC,

22 F.4th 103, 125 (2d Cir. 2021) (“[A] relationship of

control, direction, or supervision . . . serves the

purposeful availment requirement.”) (emphasis

removed), cert. denied, 142 S. Ct. 2852 (2022); MAG

IAS Holdings, Inc. v. Schmückle, 854 F.3d 894, 901–

02 (6th Cir. 2017) (defendant’s “directing and

controlling” activities in the forum state through

“phone and email” and two meetings satisfied

purposeful availment); Miss. Interstate Express,

Inc. v. Transpo, Inc., 681 F.2d 1003, 1009 (5th Cir.

1982) (defendant’s “exercise[] [of] a significant

measure of control” over activities in the forum state

satisfied purposeful availment); Whittaker Corp. v.

United Aircraft Corp., 482 F.2d 1079, 1084 (1st Cir.

1973) (defendant purposefully availed itself of the

forum by “actively supervis[ing] or actually

participat[ing] in” activities in that state); cf.

Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d

1110, 1119 (6th Cir. 1994) (defendant did not

purposefully avail itself of the forum state, in part

because it did “not supervise” any activities there).

After dismissing Cranfield’s remote supervision

of Tamarack’s work, the majority then characterizes

the two Idaho visits made by the former’s personnel

as “random, fortuitous, and attenuated, making this

case more like Picot than Silk.” Opinion at 19.

32a

The visits in Picot, however, were not “envisioned

in the initial . . . agreement,” 780 F.3d at 1213, which

means they were not foreseeable. 6 Here, the

contractual terms expressly contemplated the visits,

so they can hardly be characterized as “random” or

“fortuitous.” Nor can they be characterized as

“attenuated,” because they were to further

Cranfield’s contractually mandated supervision of

Tamarack’s work in the forum. 7 This case is more like

Silk that Picot, except that Cranfield’s contacts with

the forum here are far stronger than the contacts that

sufficed for purposeful availment in Silk.

Finally, in its discussion of the parties’ course of

dealing, the majority disregards the significance of

Cranfield’s holding the ATLAS certification. By so

holding it on Tamarack’s behalf, and by affirmatively

approving Tamarack’s installation of the ATLAS

system on the accident aircraft in Idaho, the British

company “performed some type of affirmative conduct

which allow[ed] or promot[ed] the transaction of

business within the forum state.” Picot, 780 F.3d at

1212 (emphasis added) (quoting Sher, 911 F.2d at

1362).

* * *

Sometimes we decide close cases, where only a

Foreseeability rests at the center of purposeful availment, as it

speaks to whether the defendant “reasonably anticipat[ed] being

haled into court” in the forum state. Burger King, 471 U.S. at

474.

6

The other key fact distinguishing Picot is that unlike here,

where Cranfield’s performance under the first and third phases

of the contract was directed at the forum, in that case the

defendant’s performance was unrelated to the forum.

7

33a

slight breeze might tip the balance. This is not one of

them. Plaintiffs have established that in over six

years of continuing obligations, Cranfield remotely

supervised Tamarack’s work in Idaho, physically

supervised that work in two visits expressly

contemplated by their contract, held a regulatory

certification on Tamarack’s behalf that allowed the

transaction of business within the forum, and

specifically approved Tamarack’s installation of the

ATLAS system on the accident aircraft in Idaho.

That’s much, much, more than enough to establish

purposeful availment under our published cases. I

respectfully dissent from today’s aberrational

decision.

34a

APPENDIX B

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF IDAHO

Case No. 2.20-cv-00536-BLW

ERICA DAVIS, as Personal Representative of the

Estate of ANDREW DALE DAVIS, deceased, and

minor children, JC, minor child, SD, minor child;

MICHAEL M. MASCHMEYER, as

Personal Representative of the Estate of R. WAYNE

ESTOPINAL, deceased; and

JAMES JOHNSON and BRADLEY

HERMAN, individually and as Independent CoAdministrators of the Estate of SANDRA JOHNSON,

deceased,

Plaintiffs,

v.

CRANFIELD AEROSPACE SOLUTIONS LIMITED,

Defendant.

INTRODUCTION

Before the Court is Defendant Cranfield

Aeropsace Solution Limited’s Motion to Dismiss

Plaintiffs’ Complaint for lack of personal jurisdiction.

(Dkt. 13). Having fully reviewed the record, the Court

finds that the facts and legal arguments are

35a

adequately presented in the briefs and record.

Accordingly, in the interest of avoiding further delay,

and because the Court conclusively finds that the

decisional process would not be significantly aided by

oral argument, this matter shall be decided on the

record before this Court without oral argument. Dist.

Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons

explained below, the Court finds it does not have

personal jurisdiction over Cranfield to entertain

Plaintiffs’ claims.

BACKGROUND

1. Procedural Background

This case concerns a fatal crash of a Cessna

Model 525 corporate jet airplane that occurred on

November 30, 2018, causing the deaths of its pilot

and two passengers, R. Wayne Estopinal, Sandra

Johnson, and Andrew Davis. The aircraft, piloted by

Mr. Davis, took off from a small airport in Clark

County, Indiana, bound for Chicago, Illinois. A few

minutes after takeoff, the aircraft crashed in Clark

County, Indiana. Everyone on board was killed.

Plaintiffs bring this action on behalf of the three

decedents, along with Andrew Davis’s two minor

children. Plaintiffs allege that the crash was caused

by the Tamarack Active Winglet aircraft load

alleviation system, trademarked as “ATLAS,” which

was manufactured and installed on the aircraft on

May 28, 2018, by Tamarack Aerospace Group, Inc.

Tamarack installed the ATLAS system on the

aircraft pursuant to a Supplemental Type Certificate

(“STC”),

issued

by

the

Federal

Aviation

Administration. These certificates allow an applicant

to modify an aeronautical product from its original

36a

design. Defendant Cranfield Aerospace Solutions

Limited applied for and held the STC on behalf of

Tamarack until it transferred the STC to Tamarack

in 2019 – after the fatal crash.

Plaintiffs, as personal representatives for the

decedents, initially filed suit in the Eastern District

of Washington, naming both Tamarack and Cranfield

as defendants and alleging both were liable as

“manufacturers” under the Washington Product

Liability Act (“WLPA”) and that Tamarack was also

liable as a “seller.” After Cranfield moved to dismiss

the complaint for failure to state a claim and lack of

jurisdiction, Plaintiffs conceded that personal

jurisdiction over Cranfield was lacking in

Washington.

About two months later, they filed this lawsuit

against Cranfield in this Court, alleging claims under

Idaho’s Product Liability Reform act, common-law

negligence, and a willful-and-reckless misconduct

theory. Plaintiffs, who are residents of Indiana and

Louisiana, do not identify any tortious conduct by

Cranfield that occurred in Idaho but instead allege

that Cranfield’s contractual relationship with

Tamarack justifies exercising personal jurisdiction

over Cranfield in Idaho. Tamarack is not a party to

this lawsuit.

On April 28, 2021, Cranfield filed a motion to

dismiss for lack of personal jurisdiction to Rule

12(b)(2) of the Federal Rules of Civil Procedure (Dkt.

13). On May 17, 20, the Court approved the parties’

stipulation to conduct jurisdictional discovery. After

conducting discovery, Plaintiffs filed their opposition

to the motion to dismiss, arguing that this Court may

37a

exercise specific jurisdiction over Cranfield.

2. Factual Background

A. Defendant Cranfield and its Contractual

Relationship with Tamarack

Cranfield is an English company that performs

its work in England. Howarth Decl., ¶ 3, Dkt. 13-2.

All its employees, including its executive leadership,

are based in England. Id. ¶ 5. Cranfield has never

had offices or facilities in Idaho, nor have any of its

employees been based in Idaho while working for

Cranfield. Id. ¶ 6. Cranfield has never advertised or

otherwise cultivated a market for its services in

Idaho. Id. ¶ 11.

In 2013, Tamarack approached Cranfield,

seeking assistance in obtaining an STC from the

European Union Aviation Safety Agency (“EASA”),

which would authorize the installation of the ATLAS

system on certain variants of the Cessna Model 525

jet. Id. ¶ 8. Tamarack’s initial contact with Cranfield

led the parties to enter a contract titled, “Testing and

Certification Agreement.” Id. ¶ 12, Ex. A. The parties

negotiated the contract primarily through phone and

email communications—although one negotiation

meeting occurred in person at Cranfield’s offices in

England. Id. ¶ 12(a). During the negotiations,

Cranfield informed Tamarack that all Cranfield staff

working pursuant to the contract would be based in

the United Kingdom. Id. Tamarack and Cranfield

also agreed that New York law would govern their

agreement, and the parties “IRREVOCABLY”

submitted to the venue and jurisdiction of the federal

courts located in New York and waived any objection

to venue and jurisdiction in New York. Howarth

38a

Decl., Ex A at Sec. 13.6, Dkt. 13-3. The parties’

agreement makes no mention of Idaho other than to

say that Tamarack is a Washington corporation with

its principal place of business in Sandpoint, Idaho.

Id., p. 1.

The parties’ contract required Cranfield to assist

in preparing the documentation for the EASA

application, submitting the application to EASA,

acting as a direct liaison with EASA, and serving as

the official holder of the STC once it was issued. Id.

¶¶ 15-16, 18-20. Pursuant to the parties’ contract,

Cranfield served as the main point of contact with

EASA during the process of obtaining the STC and

also provided consulting services to Tamarack to help

develop a “Certification Plan” for the ATLAS system

to submit to EASA, as well as the application for the

STC from EASA. Id. ¶¶ 13, 15.

After EASA issued the STC, Cranfield then

played the same role in securing and maintaining an

STC from the FAA. Id. ¶¶ 24-30. In 2019, Cranfield

transferred both STCs to Tamarack. Id. ¶¶ 21, 31.

The transfer was done pursuant to Section 4.3 of

their Agreement, as the parties had contemplated

and anticipated that the STCs would ultimately be

transferred to Tamarack. Id. ¶¶ 12.c, 21, 31.

Cranfield maintains it performed no work related

to the ATLAS system beyond the services outlined in

its agreement with Tamarack: it helped develop the

Certification Plans and applications sent to EASA

and the FAA, id. ¶¶ 15-16, 26- 27, but never

suggested or made any design changes to the

winglets system, id. ¶¶ 19, 20.b, 29, 30.b, never

physically produced, repaired, or refurbished any

39a

winglets, id. ¶ 32, nor sold, distributed, or delivered

any winglets, id. ¶ 33. Cranfield further maintains

that it did not disseminate to any customers in the

United States any materials related to the winglets

system, such as bulletins or manuals. Id. ¶ 30.c.

Moreover, according to Cranfield, its employees

did not perform any substantive work in Idaho

related to the winglets system. Id. ¶¶ 14.c, 17.b.

Cranfield employees worked on the EASA and FAA

Certification Plans and applications in England,

communicating with Tamarack employees in Idaho.

Id. ¶¶ 1C5.a, 20.a, 26.b, 30.a. Cranfield employees

did not make any contact with Idaho when

interfacing with European and U.S. regulators. The

STC applications were sent to the EASA office in

Germany and the FAA office in New York. d. ¶ 15.b.

And none of the FAA officials they interacted with

were based in Idaho. Id. ¶ 26.c.

As explained in more detail below, Cranfield

employees took just two trips to Idaho during the

duration of Cranfield’s work with Tamarack. Id. ¶¶

14.b, 17.c. Both visits were proposed by Tamarack,

and neither resulted in substantive work being

performed by Cranfield employees in Idaho. Id. ¶¶

14, 17. By contrast, Tamarack employees travelled to

England approximately twelve times to meet with

Cranfield employees and to prepare the applications

to EASA and the FAA.

B. Cranfield’s Trips to Idaho

Cranfield employees travelled to Idaho twice

between executing the agreement with Tamarack

and the fatal plane crash at issue in the case: once in

2013 and a second time in 2017.

40a

1) 2013 Trip

Following the execution of the contract between

Tamarack and Cranfield in June 2013, Cranfield sent

its employees, Peter Howarth, a senior engineer and

Cranfield’s head of design, and Graham Campion, a

member of Cranfield’s business-development team

who negotiated the contract, to Tamarack’s facility in

Sandpoint, Idaho. Howarth Dep. 8:20; 36:18-40:2.

Cranfield’s employees traveled to Idaho to get to

know the people at Tamarack, to “launch the

[contract] activities,” and to transition Tamarack

from Cranfield’s business-development team to its

engineering team. Howarth Dep. 39:20-43:21.

During the three days of meetings in Idaho

between Cranfield employees and Tamarack, Mr.

Howarth met Tamarack’s engineers working on the

development of the ATLAS system’s design and

observed a working protype of the ATLAS system

installed on an aircraft at the Tamarack facility.

Howarth Dep. 43:13-47:25. These in-person meetings

between Cranfield and Tamarack allowed Mr.

Howarth to speak directly to the Tamarack engineers

and familiarize himself with the ATLAS system, so

Cranfield could develop an overall approach for

certification planning. In addition, Mr. Howarth

reviewed with the Tamarack engineering team the

regulations necessary to obtain the EASA

certification for the ATLAS system and to determine

4

what testing and data gathering Cranfield would

need from Tamarack for inclusion in the EASA

certification application. Howarth Dep. 54:15-24;

58:10-60:14.

41a

2) 2017 Trip

In April 2017, Cranfield sent its Chief Stress

Engineer, Alan Missenden, to Tamarack’s facility in

Idaho. Howarth Dep. 71:14-72:5; 77:6-24. Mr.

Missenden traveled to Idaho to oversee testing EASA

and the FAA required as part of certification process

to show the integrity and safety of the aircraft or

aircraft design for which certification was sought.

Howarth Dep. 82:14-83:1. In this capacity, Mr.

Missenden observed testing of the ATLAS to

determine whether the test protocols and test results

satisfied the relevant certifying agency’s regulation.

Howarth Dep. 3:2-84:22. Mr. Missenden oversaw this

testing over the course of a “Sunday to Saturday,”

with a day on either end spent traveling to and from

the United Kingdom. Howarth Dep. 85:1-5. Cranfield

maintains that Mr. Missenden did not provide any

substantive input on the design or construction of the

winglet system, and no changes were made to its

design or construction as a result of the trip. Howarth

Decl. ¶ 17b.

Cranfield employees took no other trips to Idaho.

As noted, Plaintiffs allege these two trips to Idaho,

along with Cranfield’s contractual relationship with

Tamarack, justifies a finding of personal jurisdiction

over Cranfield in Idaho.

LEGAL STANDARD

4 context of Cranfield’s motion to dismiss

In the

under Fed.R.Civ.P. 12(b)(2), Plaintiffs bear the

burden of proving that jurisdiction is appropriate. See

Boschetto v. Hansing, 539 F.3d 1011. 1015 (9th Cir.

2008); see also Schwarzenegger v. Fred Martin Motor

42a

Co., 374 F.3d 797, 800 (9th Cir.1990). Where, as here,

the motion is based on written materials rather than

an evidentiary hearing, Plaintiffs need only establish

a prima facie showing of jurisdictional facts to

withstand the motion to dismiss. See Ballard v.

Savage, 65 F.3d 1495 (9th Cir. 1995). The Court must

take Plaintiffs’ uncontroverted allegations in the

complaint as true and resolve factual disputes in

affidavits in its favor. See Dole Food Co., Inc. v.

Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). But if

Cranfield offers evidence in support of its motion,

Plaintiff may not simply rest on the bare allegations

of their complaint. See Amba Mktg. Sys., Inc. v. Jobar

Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977). Instead,

Plaintiffs must come forward with facts, by affidavit

or otherwise, in response to Cranfield’s version of the

facts. See id.

Where there is no applicable federal statute

governing personal jurisdiction, as in this case, the

law of the state in which the district court sits

applies. See Schwarzenegger, 374 F.3d at 800.

Because Idaho’s long-arm statute, codified in Idaho

Code § 5–514, allows a broader application of

personal jurisdiction than the Due Process Clause,

the Court need look only to the Due Process Clause to

determine personal jurisdiction. Thus, under Idaho

law, the jurisdictional analysis and federal due

process analysis are one and the same.

ANALYSIS

4

The Fourteenth Amendment’s Due Process

Clause limits a state court’s power to exercise

jurisdiction over a defendant. Bristol-Myers Squibb

Co. v. Superior Court of Cal., San Francisco Cty., 137

43a

S.Ct. 1773, 1779 (2021). “Because a state court’s

assertion of jurisdiction exposes defendants to the

State’s coercive power, it is subject to review for

compatibility with the Fourteenth Amendment’s Due

Process Clause, which limits the power of a state

court to render a valid personal judgment against a

nonresident defendant.” Id. (internal quotation

marks and citations omitted). A nonresident

defendant must have “certain 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 Co. v. Washington,

326 U.S. 310, 316 (1945) (internal quotation marks

omitted). The primary focus of the personal

jurisdiction inquiry is the defendant’s relationship to

the forum state. Bristol-Meyers, 137 S.,Ct. at 1779.

This focus has led courts to recognize two types

of personal jurisdiction: general and specific. A court

may exercise general jurisdiction only when a

defendant is “essentially at home” in the State.

Goodyear Dunlop Tires Operations, S. A v. Brown,

564 U.S 915, 919 (2011). “A court with general

jurisdiction may hear any claim against that

defendant, even if all the incidents underlying the

claim occurred in a different State.” Bristol-Myers,

137 S. Ct. at 1780. “But only a limited set of

affiliations with a forum will render a defendant

amenable to general jurisdiction in that State.” Id.

(internal quotation marks omitted).

4

“Specific

jurisdiction is different: It covers

defendants less intimately connected with a State,

but only as to a narrower class of claims.” Ford

Motor, 141 S. Ct. at 1024. “The inquiry whether a

forum State may assert specific jurisdiction over a

44a

nonresident defendant focuses on the relationship

among the defendant, the forum, and the litigation.”

Walden v. Fiore, 571 U.S. 277, 285 (2014).

Specifically, “the defendant’s suit-related conduct

must create a substantial connection with the forum

State.” Id. “For this reason, specific jurisdiction is

confined to adjudication of issues deriving from, or

connected with, the very controversy that establishes

jurisdiction.” Bristol-Myers Squibb Co. v. Superior

Court, 137 S. Ct. 1773, 1780 (2017) (internal

quotation marks omitted). “When there is no such

connection, specific jurisdiction is lacking regardless

of the extent of a defendant’s unconnected activities

in the State.” Id.

Plaintiffs here concede the Court cannot exercise

general jurisdiction over Cranfield. Instead, they

argue that Cranfield’s contacts with Idaho give rise to

specific jurisdiction. The Ninth Circuit analyzes

specific jurisdiction under a three-prong test. This

test examines whether (1) the defendant has either

purposefully (a) directed its activities towards the

forum or initiated a transaction with the forum or

one of its residents or (b) availed itself of the

privileges and benefits of the forum permitting it to

benefit from the protections of the forum’s laws; (2)

the cause of action arises out of or relates to the

defendant’s forum- related activities; and (3) the

assertion of jurisdiction is reasonable and comports

with “fair play and substantial justice.” Glob.

Commodities

4 Trading Grp., Inc. v. Beneficio de Arroz

Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 2020).

Plaintiffs bears the burden of satisfying the first

two prongs of the test. Wells Cargo, Inc. v. Transp.

Ins. Co., 676 F. Supp. 2d 1114, 1119–20 (D. Idaho

45a

2009) (citing Yahoo! Inc. v. La Ligue Contre Le

Racisme Et L'Antisemitisme, 433 F.3d 1199, 1205

(9th Cir. 2006) (en banc)). If Plaintiffs succeed in

meeting the first two prongs, the burden then shifts

to Cranfield “to present a compelling case that the

exercise of jurisdiction would not be reasonable.” Id.

(internal quotation marks and citation omitted).

1. Purposeful Availment

Either purposeful availment of the forum or the

purposeful direction of activities toward the forum

can satisfy the first prong. See, e.g., Albertson's LLC

v. Kleen-Sweep Janitorial Co., No. CIV. 09-263-SBLW, 2009 WL 3786290, at *3 (D. Idaho Nov. 9,

2009) (citing Yahoo! Inc. v. La Ligue Contre Le

Racisme, 433 F.3d 1199, 1206 (9th Cir. 2006).

“Purposeful direction generally applies to tort cases,

in which a court applies an effects test focusing on

the forum where the defendant’s actions were felt,

whether or not the actions themselves occurred

within that forum.” Id. When a case involves tort

claims, a single act creating a substantial connection

with the state can support personal jurisdiction. Roth

v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir. 1991).

In contrast, purposeful availment applies to contract

claims, and requires the Court to examine whether

the defendant “purposefully avails itself of the

privilege of conducting activities’ or consummates a

transaction’ in the forum, focusing on activities such

as delivering goods or executing a contract.” Id.

(quoting 4

Schwarzenegger v. Fred Martin Motor Co.,

374 F.3d 797, 802 (9th Cir. 2004) (internal quotation

marks and brackets omitted).

This case sounds in tort; thus, the Court would

46a

typically employ a “purposeful direction” analysis.

See, e.g., Axiom Foods, Inc. v. Acerchem Int'l, Inc.,

874 F.3d 1064, 1069 (9th Cir. 2017) (“Where, as here,

a case sounds in tort, courts typically employ the

“purposeful direction test.”). But Plaintiffs cannot

show they suffered any harm in Idaho – a critical

element of the purposeful direction or “effects test.”

See, e.g., Dole Food Co. v. Watts, 303 F.3d 1104, 111213 (9th Cir. 2002) (noting a “harm in the forum” is

“necessary” to satisfy the purposeful direction test).

They therefore argue that the Court should instead

apply the “purposeful availment” standard typically

employed in cases sounding in contract. In support of

this assertion, Plaintiffs rely heavily on the court’s

reasoning in Costa v. Keppel Singmarine Dockyard

PTE, Ltd., No. CV 01-11015MMM, 2003 WL

24242419, at *15 (C.D. Cal. Apr. 24, 2003).

In Costa, the plaintiff’s decedent, a crew member

working on a ship as it sailed in the Western Pacific

Ocean, sustained fatal injuries resulting from an

ammonia discharge valve explosively separating. Id.

The plaintiff alleged that a Wisconsin corporation

improperly designed the valve, and the Singaporean

defendant (KSD) improperly installed the valve at its

shipyard in Singapore pursuant to a contract with

the California-based shipowner. Although plaintiff

alleged strict liability and negligence claims and was

not a party to the contract, the court applied a

purposeful availment analysis; it reasoned that the

claims against

KSD arose “out of its performance of

4

contractual obligations, as the company undertook to

repair the [ship] only as a consequence of its entry

into a contract with [the shipowner].” Id. at *15.

Based on Costa, Plaintiffs argue that the Court

47a

should apply the purposeful availment analysis in

this case because their negligence and product

liability claims against Cranfield arise from

Cranfield’s performance of its contractual obligations

with Tamarack. But even applying the purposeful

availment analysis, Plaintiffs cannot show Cranfield

had sufficient minimum contacts with Idaho to

subject it to specific personal jurisdiction here.

The purposeful availment analysis examines

whether the defendant purposefully availed itself of

the privilege of doing business in a forum state by

engaging in some type of affirmative conduct that

allows or promotes the transaction of business within

the forum state. Sher v. Johnson, 911 F.2d 1357,

1362 (9th Cir.1990). In this way, a defendant

“purposefully avails itself of the privilege of

conducting activities within the forum State, thus

invoking the benefits and protections of its laws.”

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d

797, 802 (9th Cir. 2004) (quoting Hanson v. Denckla,

357 U.S. 235, 253 (1958). “In return for these benefits

and protections, a defendant must—as a quid pro

quo—submit to the burdens of litigation in that

forum.” Id. (quoting Burger King Corp. v. Rudzewicz,

471 U.S. 462, 476 (1985) (internal quotation marks

omitted). This analysis is designed to ensure that the

defendant will not be haled into a jurisdiction solely

based on random, fortuitous, or attenuated contacts.

Id. at 475.

4

“A showing

that a defendant purposefully availed

himself of the privilege of doing business in a forum

state typically consists of evidence of the defendant’s

actions in the forum, such as executing or performing

a contract there.” Schwarzenegger, 374 F.3d at 802.

48a

But Cranfield’s contracting with Tamarack, an Idahobased corporation, does not by itself establish

minimum contacts with Idaho. Burger King, 471 U.S.

at 478. Rather, the Court must assess “prior

negotiations and contemplated future consequences,

along with the terms of the contract and the parties’

actual course of dealing” to determine whether it is

appropriate to exercise specific jurisdiction over

Cranfield. Id. at 479.

Considering these factors, none of the facts here

show that Cranfield, itself, engaged in any

affirmative conduct that allowed or promoted the

transaction of business in Idaho. First, it is

undisputed that Cranfield did not initiate the

contract discussions with Tamarack or otherwise

directly solicit business in Idaho, and none of

Cranfield’s contract negotiations occurred in Idaho.

As noted by this Court, “if the defendant directly

solicits business in the forum state, the resulting

transactions will probably constitute the deliberate

transaction of business invoking the benefits of the

forum state’s laws.” Clearwater Rei, LLC v. Focus

Consulting Advisors, LLC, No. CIV. 1:10-448 WBS,

2011 WL 3022071, at *4 (D. Idaho July 22, 2011)

(quoting Decker Coal Co. v. Commonwealth Edison

Co., 805 F.2d 834, 840 (9th Cir. 1986)). “Similarly,

conducting contract negotiations in the forum state

will probably qualify as an invocation of the forum

law’s benefits and protections.” Id. By contrast,

“when a plaintiff

solicits a defendant to enter into a

4

contract, the defendant is not normally considered to

have availed itself of the laws of the [forum’s] state.”

Id. (citing Sher v. Johnson, 911 F.2d 1357, 1362 (9th

Cir. 1990).

49a

Here, there is no evidence that Cranfield sought

out any Tamarack services in Idaho or benefitted

from the fact that Tamarack happens to reside in

Idaho. Indeed, the Tamarack and Cranfield expressly

agreed New York – not Idaho law – would govern the

parties’ agreement,

which indicates “rather

forcefully” that Cranfield “did not purposefully direct

its activities toward” Idaho. Id. at *6 (citing, e.g.,

Jones v. Petty–Ray Geophysical Geosource, Inc., 954

F.2d 1061, 1069 (5th Cir.1992) (noting that choice of

law provision designating non-forum state's laws

“indicate[d] rather forcefully” that the defendant “did

not purposely direct its activities toward” the forum).

And during the contract negotiations, Tamarack

representatives traveled to England, but Cranfield’s

representatives never traveled to Idaho.

Moreover, the parties understood Cranfield

would perform most of its work, and where Cranfield

did indeed perform most, if not all, its substantive

work pursuant to the contract. Cranfield has never

played a role in manufacturing, assembling, or

refurbishing Tamarack’s ATLAS winglets system,

and Cranfield has never sold, distributed, or

delivered the Tamarack winglet system in the United

States. Tamarack wired all of its payments to

Cranfield in England, and Cranfield made no

payments to Tamarack in Idaho. These facts indicate

Cranfield’s contacts with Idaho were merely “random,

fortuitous, or attenuated” and thus cannot establish

jurisdiction

4 over Cranfield in Idaho. Burger King, 471

U.S. at 475.

Nor did Cranfield employees’ two short trips to

Idaho create the requisite contacts with Idaho to

support a finding of jurisdiction. “While physical

50a

entry into the State ... is certainly a relevant contact,

a defendant’s transitory presence will support

jurisdiction only if it was meaningful enough to

create a ‘substantial connection’ with the forum

State.” Picot v. Weston, 780 F.3d 1206, 1213 (9th Cir.

2015) (internal citations and quotation marks

omitted).

Here, this substantial connection is lacking. In

both instances, Cranfield traveled to Idaho at

Tamarack’s request and expense. The first visit –

which lasted a mere three days – amounted to

essentially a “meet and greet” between the parties,

and little, if any, substantive work was performed.

During the second visit, Cranfield oversaw some

testing performed by Tamarack over the course of a

week, with a day on either end spent traveling to and

from the United Kingdom, and, again, Cranfield

performed little substantive work while in Idaho. By

contrast, over the course of the parties’ contract,

Tamarack

employees

traveled

to

England

approximately twelve times to meet with Cranfield

employees and to prepare the applications to EASA

and the FAA.

In short, the two trips by Cranfield employees to

Idaho over the course of five years “hold no special

place in [Cranfield’s] performance under the

agreement as a whole.” Picot, 780 F.3d at 1213. As

contemplated by the parties, the overwhelming bulk

of Cranfield’s work for Tamarack occurred in

England. Cranfield employees worked on the EASA

and FAA Certification Plans and applications in

England, communicating with Tamarack employees

in Idaho. Cranfield sent the STC applications the

EASA office in Germany and the FAA office in New

51a

York. And none of the FAA officials they interacted

with were based in Idaho.

Despite Cranfield’s lack of ties to Idaho,

Plaintiffs contend that “courts have found that the

‘purposeful availment’ standard was satisfied in cases

involving far lesser contacts with the forum state.”

Pls’ Resp. Br., p. 14, Dkt. 32. Once again relying on

Costa, Plaintiffs note the court there found

purposeful availment “despite the fact that the

contract contemplated that KSD’s work would be

performed outside the forum state, and despite the

fact that KSD negotiated the contract from Singapore

and provided for the application of Singapore law.”

Id. (quoting Costa, 2003 WL 24242419, at *17).

But the court in Costa exercised jurisdiction

based solely on the fact the Singaporean defendant

solicited the contract that gave rise to the plaintiff’s

claims in California. Costa, 2003 WL 24242419, at

*20. Had the defendant in Costa “not purposefully

injected itself into California to solicit the repair

contract on the [ship],” the Court would have found

jurisdiction lacking. Costa, 2003 WL 24242419, at

*20. Because Plaintiffs present no evidence that

Cranfield purposefully injected itself into Idaho to

solicit the contract with Tamarack, Plaintiffs cannot

rely on Costa to support a finding of jurisdiction in

this case. Indeed, if anything, Costa supports a

finding of no jurisdiction in this case.

Plaintiffs’ reliance on McHugh v. Vertical

Partners West, LLC, 2021 WL 1554065 (D. Idaho Apr.

19, 2021) is also misplaced. Plaintiffs argue McHugh

supports jurisdiction here on the grounds that both

cases involve an indemnification agreement. But this

52a

case differs from McHugh in significant ways.

In McHugh, this Court found the following facts

supported a finding that the defendant, a Chinese

manufacturer, purposefully availed itself of the

privilege of doing business in Idaho: the defendant

had “routinely conducted business in Idaho” by

selling its products to the third-party plaintiff and

shipping them to the plaintiff’s Idaho headquarters;

the defendant entered into an “exclusive” supply

agreement with the plaintiff, which stated the

plaintiff was based out of Idaho and made the

plaintiff the exclusive purchaser of the defendant’s

products; the agreement was “of great pecuniary

significant” for the defendant. Id. at *4. In addition,

the parties’ exclusive supply agreement referenced

Idaho several times, specifically making Idaho the

governing law of the contract in the choice-of-law and

arbitration provisions. Id. And, importantly, the

third-party plaintiff had sued the Chinese defendant

under the indemnity provision in the parties’

agreement, alleging harm suffered in Idaho. Id.

This case, by contrast, is a tort case involving all

out-of-state plaintiffs, an out-of-state accident, and

an out-of-state defendant. No party alleges any harm

suffered in Idaho, and Cranfield, unlike the

defendant in McHugh, did not “routinely conduct

business in Idaho” by regularly shipping products to,

or providing services, in Idaho. Cranfield’s only tie to

Idaho is through the non-party, Tamarack. This

singular tie, without more, does not establish the

minimum contacts necessary for to subject Cranfield

to personal jurisdiction in Idaho.

53a

2. Conclusion

Given that plaintiff cannot establish the first

prong of the test for specific personal jurisdiction, the

court need not proceed to the remaining inquiries

under the Ninth Circuit’s test. See Boschetto, 539

F.3d at1016 (“[I]f the plaintiff fails at the first step,

the jurisdictional inquiry ends and the case must be

dismissed.”).

Plaintiffs have thus failed to demonstrate that

the Court has specific personal jurisdiction over

defendant.

ORDER

IT IS ORDERED that Defendant Cranfield

Aerospace Solutions Limited’s Motion to Dismiss the

Complaint (Dkt. 13) is GRANTED.

DATED January 4, 2022

B. Lynn Winmill

U.S. District Court Judge

54a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICA DAVIS, as Personal Representative of the

Estate of Andrew Dale Davis, deceased, and minor

children, JC, minor child, SD, et al.,

Plaintiffs-Appellants,

v.

CRANFIELD AEROSPACE SOLUTIONS, LIMITED,

Defendant-Appellee.

ORDER

Before: BUMATAY and SANCHEZ, Circuit Judges,

and BAKER, * International Trade Judge.

Judges Bumatay and Sanchez have voted to

deny the petition for rehearing en banc. Judge Baker

recommended granting the petition. Fed. R. App. P.

40. The full court has been advised of the petition,

and no judge has requested to vote on whether to

rehear the matter en banc. Fed. R. App. 35. The

petition for rehearing en banc (Dkt. No. 41), is

therefore DENIED.

The Honorable M. Miller Baker, International Trade Judge for

the United States Court of International Trade, sitting by

designation.

*