# Opposition Brief — Bond v. Octagon Process, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1232

## Text

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M
No. 90-1690 AY 31 1999
OFFICE OF THE CLERK

a

In The

Supreme Court of the United States

——_-

October Term, 1990
OLIVER M. BOND-and HERTA R. BOND,
Petitioners,
VS.
OCTAGON PROCESS, INC.,
Respondent.

On Petition for Writ of Certiorari to the United States Court
of Appeals for the Eleventh Circuit

BRIEF FOR RESPONDENT

CARL R. WOODWARD, III
Counsel of Record
KENWETH L. WINTERS
WALTER G. LUGER
CARELLA, BYRNE, BAIN,
GILFILLAN, CECCHI & STEWART
Attorneys for Respondent
Six Becker Farm Road
Roseland, New Jersey 07068
(201) 994-1700

49!
tz * NJ (201) 257-6850*(800) 3 APPEAL *NY (212) 640-4640*MA (617) 542-1114
© ime. OC (202) 783-7288+PA (215) 925-6500°USA (800) 5 APPEAL

RESTATED QUESTIONS PRESENTED FOR REVIEW

1. Whether the case was properly dismissed for lack of in
personam jurisdiction because petitioners failed to establish the
existence of sufficient contacts between respondent and the forum
State of Georgia.

2. Whether, in the absence of in personam jurisdiction over
the respondent, the case was properly dismissed rather than
transferred pursuant to 28 U.S.C. § 1406(a) where petitioner never
requested or raised the transfer issue to the District Court?

il

LIST OF COMPANIES PURSUANT TO RULE 28.1

Respondent Octagon Process, Inc. (‘“‘Octagon’’) has no parent
company, subsidiaries or affiliates.

iii
TABLE OF CONTENTS

Page
Restated Questions for Review........................ i
List of Companies Pursuant to Rule 28.1 .............. il
a RS Se iii
eee oon rete re bssrccetsvehee. iv
ee lap hb beh b ened eveesee l
EG OD 0. cece cc corcccsveccecs 2

Summary of Octagon’s Opposition to Bonds’ Petition for
RS a 6

Argument:

I. The courts below properly dismissed the case for lack
of in personam jurisdiction because petitioners failed
to establish sufficient contacts between respondent
Octagon and the forum State of Georgia. ....... 6

A. The Georgia Long-arm Statute Provides an
Independent and Adequate Basis for the
Decision of the Lower Courts.............. 7

B. Established Supreme Court Precedent Fully
Supports the Decision of the Lower Courts. . 9

C. The Decision in World-Wide Volkswagen v.
Woodson, 444 U.S. 286 (1980) Is Dispositive of
le gO 11

iv

Contents
Page

D. Asahi Does Not Control the Disposition of this
BS ace vce' Ghee eke eee haT ane habe ene 15

E. There Is No Split of Opinion in the First, Fifth
Bee ING 0.6 6.05 02.0.0 066600400 h0 17

Il. The Eleventh Circuit did not commit error by
dismissing the case rather than transferring the case
to New Jersey pursuant to 28 U.S.C. § 1406(a), where
petitioners never requested or raised the transfer issue
fp 4 2 eS er eee |e re 21

To. a cry eae eee ee ee 2 oe 24
TABLE OF CITATIONS

Cases Cited:

Asashi Metal Industry Co., Ltd. v. Superior Court of
California, 480 U.S. 102, 107S. Ct. 1026, 94 L. Ed. 2d
NT o0e vos sired cae ee ccacnene een 11, 15, 16, 17, 21

Benitez-Allende v. Alcan Aluminio Do Brasil, S.A., 857 F.2d
26 (Ist Cir. 1988), cert. denied, 489 U.S. 1018, 109 S.
oe. Dee De Ee ee es vo bcc bac s-cacnee 18

Bond v. Octagon Process, Inc., 745 F. Supp. 710 (M.D. Ga.
ere ri erin ate end Riggng es ans bees y ie ee

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)

Contents
Page

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct.
reg ee Re ee rere ree free 11

DeLong Equipment Co. v. Washington Mills Abrasive Co.,
& & RF ft Ee ren aren re ‘re

Goldlawr v. Heiman, 369 U.S. 463, 82S. Ct. 913, 8 L. Ed.
re Re errr rer eer ere er p+

Gulf Consol. Services v. Corinth Pipeworks, S.A: 898 F.2d
1071 (Sth Cir.), cert. denied, ___- U.S. __, 111 S. Ct.
re) ee rrr 19

Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed.
ge fee Perr erry TT eer 10, 11, 13

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,
104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) ......... 10, 15

Hormel v. Helvering, 312 U.S. 552, 61 S. Ct. 719, 85 L. Ed.
Be CNN 0 6 96 Foc 8s 6 dndss dad aeeb enna 22

International Shoe Co. v. Washington, 326 U.S. 310, 66S.
ik, ES See ee es I A bee knwe dea ves 9, 10, 16

Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383 (Sth
Cir.), reh’g. denied, 872 F.2d 423, cert. denied sub nom,
Jugometal Enterprise For Import and Export of Ores
and Metals v. Irving, __ U.S. __, 110 S. Ct. 83, 107
ie SI os ona ss Fb oRRD EER Kee 18

Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104S. Ct.
gf | Oh Um OU rrr 10

vi

Contents
Page

Kulko v. California Superior Court, 436 U.S. 84, 98S. Ct.
ey en Be Be CEOTOD 0 co vec ccccccwonses 11, 13

Lines v. Falstaff Brewing Co., 233 F.2d 927 (9th Cir.), cert.
denied, 352 U.S. 893, 77S. Ct. 129, 1 L. Ed. 2d 88 (1956)
Madara v. Hall, 916 F.2d 1510 (lith Cir. 1990) ........ 21

Mason v. F. LLI Luigi & Franco Dal Maschio Fu G.B. s.n.c.,
ag 2 Fe fs A | er 19, 20

Morris v. S.S.E., Inc., 843 F.2d 489 (llth Cir. 1988)

NE Cee LL CLL ei dake eee Ree Oe oo hee bereeeeeh el 21
Schellenberger v. Tanner, 138 Ga. App. 399, 227 S.E. 2d 266

Sts 2 a Cute peg gece as Ske Aad oo 8
Smith v. Smith, 254 Gal. 450, 330 S.E. 2d 706 (1985) ... 8
United States v. Wells Fargo Bank, 485 U.S. 351, 108S. Ct.

Sn ee ts Ae OEE 6 koe ceded ée cesses. 7
United States v. Wright Motor Co., Inc., 536 F.2d 1090 (Sth

Cir.), reh’g. denied, 542 F.2d 576 (Sth Cir. 1976)

Re Ee ee eras wee a's oie ode ha Pp wee 23

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) ...........
DUEL ees ba daaee leks eee 10, 11, 12, 13, 14, 16, 20

LJ)

vil

Contents

Page
Statutes Cited:
ee I 6 0 5.6 6b ce cap esievckeeiédeavess by Bly a
re re 7
United States Constitution Cited:
oh oi ku pos iat news cdedee nese 9
Rule Cited:
Fs ee I bb cbsscceseNesanebebbks ceeapseues 22

Other Authority Cited:

Wright & Miller, Federal Practice and Procedure: Civil 2d
fg GS, Rrra ere aa an mere eee 15

No. 90-1690

In The

Supreme Court of the United States

October Term, !990
OLIVER M. BOND and HERTA R. BOND,
Petitioners,
VS.
OCTAGON PROCESS, INC
Respondent.

On Petition for Writ of Certiorari to the United States Court
of Appeals for the Eleventh Circuit

BRIEF FOR RESPONDENT

OPINIONS BELOW

The opinion of the United States District Court for the Middle
District of Georgia in this case has been published in 745 F. Supp.
710 (M.D. Ga. 1990). On March 28, 1991, the Eleventh Circuit
Court of Appeals affirmed the judgment of the District Court
based upon the reported opinion of the District Court. The opinion

of the Eleventh Circuit has been published in 926 F.2d 1573 (1991).
COUNTERSTATEMENT OF THE CASE

On December 5, 1982, petitioner Oliver M. Bond was on
active duty with the National Guard at the Elberton Armory, in
Georgia. Petitioner claims to have been injured while he was using
a solvent to clean National Guard vehicles at the Armory. The
cleaning solvent used by petitioner was allegedly manufactured
by respondent Octagon Process, Inc. (‘‘Octagon’’), pursuant to
government contract and under government specifications and
supervision.

On May 7, 1987, petitioner Oliver Bond filed his complaint
in the United States District Court for the Middle District of
Georgia seeking damages for personal injuries sustained to his
hands as well as for hospital and medical expenses. His wife, Herta
Bond, also sued for damages per quod. Petitioners alleged ‘‘that
Mr. Bond’s injuries were caused by the defendant’s failure to
provide adequate warnings of the dangers of exposure to solvents
at low temperatures.’’ Bond v. Octagon Process, Inc., 745 F. Supp.
710, 711 (M.D. Ga. 1990).'

Octagon is a New Jersey corporation which manufactured
a certain cleaning solvent pursuant to a detailed military
specification (MIL-C-11090D) and government contract therefor.
No contacts or connections between Octagon and the forum State
of Georgia were shown by petitioners nor was any evidence
presented that Octagon ever conducted any business in the State
of Georgia. As succinctly stated by the District Court:

1. It is undisputed that petitioner, Oliver M. Bond, never read the warning
label contained on the solvent labels, which specifically warned against contact
with skin (Dep. of Oliver M. Bond, 9/30/88, pp. 23-20 to 28-24).

Octagon Process, the defendant, is 2 New
Jersey corporation with no offices, employees,
agents or other personal contacts with Georgia.
Octagon has no agent for service of process in
Georgia and has never sought approval from the
state of Georgia to do business there.

At its plant in New Jersey, the defendant
manufactures the solvent in question pursuant to
a government contract. The solvent is made
according to specifications issued by the
government; Octagon did not develop or alter the
formula supplied by the government. A
government inspector stationed at the defendant’s
plant supervised the manufacturing process and
had the authority to set aside any shipment that
failed to conform to the specifications before it
left the premises. The solvent was made for sale
to the United States only and has never been sold
to any private purchaser. At the time of the injury,
Octagon was the only approved supplier of the
solvent.

Bond v. Octagon Process, Inc. 745 F. Supp. at 711.

On June 14, 1989, Octagon filed a motion to dismiss the
case and/or for summary judgment based on three theories which
included: (1) lack of personal jurisdiction; (2) that even if personal
jurisdiction existed, Octagon would be put to an unreasonable
hardship if it had to defend in Georgia; and (3) that the government
contractor defense applied and shielded Octagon from liability.’

2. The courts below never reacned the second and third issues because of
their decisions on the jurisdictional issue.

4

In a published decision issued on September 19, 1990, the
~~ District Court dismissed petitioners’ case on two grounds. First,
the District Court concluded that Octagon was not amenable to
suit under the Georgia long-arm statute. Second, the District Court
concluded that Octagon could not be subject to suit in Georgia
consistent with federal constitutional due process requirements
because petitioners had failed to establish sufficient minimum
contacts between Octagon and the forum State of Georgia.

The District Court analyzed the Georgia long-arm statute and
concluded that respondent was not subject to the Georgia long-
arm statute. Bond v. Octagon Process, Inc., supra, 745 F. Supp.
at 712. The District Court sta*ed as foliows:

It is undisputed that Octagon has no direct ties
with Georgia, as noted above. The deposition of
Mr. Lee Leibmann, Octagon’s president, indicates
that the defendant shipped the solvent in question
to various government depots around the country,
after which the government sent it to where it was
needed. (Depo. pp. 22-24.) Thus, the defendant
shipped the product to an independent distributor
who then controlled where it was ultimately sent.
This is the closest contact Octagon has ever had
with Georgia, and it simply does not qualify as
‘‘a transaction with or in the forum.”’

Id. The District Court concluded that this conduct did not
constitute the purposeful doing of some act or consummation
of some transaction with or in the forum state as required by
the long-arm statute. /d.

The District Court next turned to federal constitutional due
process requirements as an alternative basis for its decision and
concluded that Octagon did not have the requisite ‘‘minimum

contacts’’ with the forum State of Georgia. /d. at 712. The court
undertook a comprehensive review of Supreme Court decisions
regarding ‘‘minimum contacts’’ and concluded that established
Supreme Court precedent required that there be some act of the
defendant purposely directed to the forum state. /d. at 713. The
District Court concluded that it could not exercise personal
jurisdiction over Octagon, and stated that:

Even assuming that the plaintiffs are correct when
they claim that Octagon knew its product would
eventually enter Georgia . . ., Asahi has made it
clear that this is simply not enough to form
sufficient minimum contacts so. that Octagon could
foresee being haled into court here. The record
reveals no other act by the defendant purposefully
directed toward Georgia as required by Asahi.
When Octagon sold the solvent to the Department
of Defense, which acted as an independent
distributor, it merely placed its product into the
stream of commerce, an act which alone will not
allow this court to exercise personal jurisdiction
in Georgia.

Id. at 713-714.

Petitioners appealed the District Court’s decision to the
Eleventh Circuit Court of Appeals. The issue of in personam
jurisdiction was briefed at length, as was the newly raised issue
of whether the District Court should have sua sponte transferred
the case to the District of New Jersey. The Court of Appeals heard
oral argument on March 6, 1991 and on March 28, 1991, affirmed
the decision of the District Court based upon the veported opinion
below.

SUMMARY OF OCTAGON’S OPPOSITION TO BONDS’
PETITION FOR CERTIORARI

Petitioners have not presented this Court with any substantial
issue meriting review. The District Court’s dismissal of the case
due to lack of in personam jurisdiction over the respondent
Octagon, was affirmed by the Eleventh Circuit on the basis of
the District Court’s dispositive, reported decision. The District
Court’s decision is in accord with Supreme Court jurisprudence
and does not conflict with any decision by this Court. The decision
below is not in conflict with the decision of any other Circuit
Court of Appeals, and it does not in any other way call for the
exercise of this Court’s supervisory powers. In addition, the courts
below did not err by dismissing this case rather than transferring
the case to New Jersey where petitioners failed to request such
relief from the District Court.

ARGUMENT

THE COURTS BELOW PROPERLY DISMISSED THE
CASE FOR LACK OF IN PERSONAM JURSDICTION
BECAUSE PETITIONERS FAILED TO ESTABLISH
SUFFICIENT CONTACTS BETWEEN RESPONDENT
OCTAGON AND THE FORUM STATE OF GEORGIA.

The evolution of the due process standards that guide courts
in determining whether a defendant is amenable to in personam
jurisdiction in a particular forum has been set forth in the reported
decision of the District Court, and need not be repeated at length
herein. The primary consideration in the jurisdictional inquiry
is that of fundamental fairness to the defendant. As the facts
of this case make clear, the lower courts correctly dismissed this
case because petitioners had failed to establish sufficient, if any,

contacts between Octagon and the forum State of Georgia.

A. The Georgia Long-arm Statute Provides an Independent and
Adequate Basis for the Decision of the Lower Courts.

It is fundamental that the Court need not reach a
constitutional issue where the case can be decided on some other
grounds, such as statutory construction or general law. United
States v. Wells Fargo Bank, 485 U.S. 351, 354, 108 S. Ct. 1179,
99 L. Ed. 2d 368 (1988). The lower courts applied a two-step
analysis in determining whether the Georgia long-arm statute
conferred jurisdiction over Octagon.’

The Georgia long-arm statute, O.C.G.A. § 9-10-91, provides
in pertinent part:

A court of this state may exercise personal
jurisdiction over any non-resident or his executor
or administrator, as to a cause of action arising
from any of the acts, omissions, ownership, use
Or possession enumerated in this Code section, in
the same manner as if he were a resident of the
State, if in person or through an agent, he: ...

(3) Commits a tortious injury in this state caused
by an act or omission outside this state if the tort-
feasor regularly does or solicits business, or engages
in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed

‘

3. **First, it must be decided whether the defendant is amenable to suit
under the state statute, as determined by the law of the state. Next, if the first
step is met, the court must decide whether the assertion of jurisdiction over
the defendant meets federal due process requirements.’’ Bond v. Octagon Process,
Inc., supra, 745 F. Supp. at 711, citing DeLong Equipment Co. v. Washington
Mills Abrasive Co., 840 F.2d 843 (lith Cir. 1988).

or services rendered in this state;

The lower courts applied a three-element test to determine
if Octagon was subject to the reach of the Georgia long-arm
statute.* This test was set forth in Schellenberger v. Tanner, 138
Ga. App. 399, 404-05, 227 S.E. 2d 266, 273 (1976) and was cited
with approval by the Supreme Court of Georgia. Smith v. Smith,
254 Ga. 450, 330 S. Ed. 2d 706 (1985); see DeLong, 840 F.2d
at 849.

The lower courts concluded that the first element of the
Schellenberger test was not met. The District Court concluded
as follows:

The court is not satisfied that the first part of the
Schellenberger test has been met in this case. It
is undisputed that Octagon has no direct ties with

4. The three elements of the test are as follows:

1. The non-resident has purposefully done some act or consummated some
transaction with or in the forum (but the actual act or omission resulting in
the injury here need not have occurred in this state). The defendant need not
be physically within the forum when this act or transaction occurs and a single
such instance may suffice;

2. The Georgia plaintiff must have a legal cause of action in tort against
the non-resident, which arises out of, or results from, the purposeful activity
of the defendant involving this state; a resident is the victim of a ‘‘tortious
act’’ when he suffers an injury here due to an act or omission of negligence
occurring outside this state; and

\
3. If the requirements of (1) and (2) are satisfied, the exercise of jurisdiction
over the non-resident must be ‘‘reasonable.’’

Georgia, as noted above. The deposition of Mr.
Lee Leibmann, Octagon’s president, indicates that
the defendant shipped the solvent in question to
various government depots around the country,
after which the government sent it to where it was
needed. (Depo. pp. 22-24.) Thus, the defendant
shipped the product to an independent distributor
who then controlled where it was ultimately sent.
This is the closest contact Octagon has ever had
with Georgia, and it simply does not qualify as
‘a transaction with or in the forum.’’
Schellenberger, 227 S.E.2d at 273.

Bond v. Octagon Process, Inc., supra, 745 F. Supp. at 712.

Thus, the District Court concluded that the Georgia long-
arm statute did not permit Georgia to assert personal jurisdiction
over Octagon. Based upon this holding, the District Court need
not have gone further to discuss due process requirements. Because
the Georgia long-arm statute furnishes adequate state statutory
grounds for the denial of personal jurisdiction over Octagon, this
Court need not and should not reach the federal constitutional
due process arguments of petitioners.

B. Established Supreme Court Precedent Fully Supports the
Decision of the Lower Courts.

The due process clause of the Fourteenth Amendment protects
an individual’s liberty interest by ensuring that an individual is
not subject to a binding judgment in a forum with which the
individual has established no meaningful ‘‘contacts, ties, or
relations.’’ Jnternational Shoe Co. v. Washington, 326 U.S. 310,
319, 66S. Ct. 154, 90 L. Ed. 95 (1945). The due process clause
“*gives a degree of predictability to the legal system that allows
potentiai defendants to structure their primary conduct with some

10

minimum assurance as to where that conduct will and will not
render them liable to suit.’’ World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490
(1980).

In International Shoe Co. v. Washington, supra, 326 U.S.
at 316, the Supreme Court held that:

[D]ue process requires only that in order to subject
a defendant to a judgment in personam, if he be
not present within the territory of the forum, he
have certain [1] minimum contacts with it such that
the maintenance of the suit does not offend [2]
‘*traditional notions of fair play and substantial
justice.’’ quoting Milliken v. Mever, 311 U.S. 457,
463, 61 S.Ct. 339, 85 L.Ed. 278 (1940).

In Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228,
2 L. Ed. 2d 1283 (1958) this Court further refined its due process
analysis by stating that ‘‘it is essential in each case that there be
some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.’’ The purposeful
availment requirement ensures that a defendant will not be haled
into a distant state solely as a result of ‘‘random, isolated or
fortuitous’’ contacts, Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 774, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984) or because
of the ‘‘unilateral activity of another party or a third person.”’
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 417,
104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).

To satisfy the test of minimum contacts, the plaintiff is
obligated to carry the burden of proving that the defendant has
purposefully availed himself of the privilege of conducting activities
within the forum state thereby invoking the benefits and

1]

, protections of its law, and that defendant’s conduct and connection
with the forum state are such that the defendant should anticipate
being haled into the forum court. Hanson v. Denckla, supra, 357
U.S. at 253; Kulko v. California Superior Court, 436 U.S. 84,
97-98, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978). This Court has
repeatedly emphasized that the purposeful nature of the
defendant’s conduct targeted or directed at the forum by the
defendant is the determinative factor, rather than mere
foreseeability of the consequence or effect of the defendant’s
conduct. Hanson v. Denckla, supra, 357 U.S. at 253; World-Wide
Volkswagen Corp. v. Woodson, supra, 444 U.S. at 297-98; Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S. Ct. 2174,
85 L. Ed. 2d 528 (1985); Asahi Metal Industry Co., Ltd. v. Superior
Court of California, 480 U.S. 102, 108-9, 107 S. Ct. 1026, 94
L. Ed. 2d 92 (1987) (plurality opinion of Justice O’Connor).

The petitioners failed to carry their burden in this case. Thus,
the conclusion of the lower courts that Octagon performed no
activity purposely directed toward the forum State of Georgia:
(1) is supported by the record below; (2) complies with established
due process principles; and (3) does not support a grant of
certiorari.

C. The Decision in World-Wide Volkswagen v. Woodson, 444
U.S. 286 (1980) Is Dispositive of this Case.

In World-Wide Volkswagen, supra, two New York residents
brought a products liability suit in an Oklahoma state court against
numerous defendants, including a New York automobile retailer
who sold the plaintiffs an allegedly defective car. The suit arose
following an automobile collision on an Oklahoma highway which
occurred while plaintiffs were travelling to their new home in
Arizona. Plaintiffs based their argument for jurisdiction on the
theory of actual foreseeability. Due to the highly mobile nature
of motor vehicles, the plaintiffs argued that the defendants should

aw

12

have foreseen the possibility that their automobile would be used
in another state and cause injury there.

The Court rejected plaintiffs’ actual foreseeability theory.
The Court clearly and specifically concluded that foreseeability
alone was not a proper basis for personal jurisdiction under the
due process clause, for thus every seller of chattels would in effect
appoint the chattel as his agent for service of process. World-
Wide Volkswagen, supra, 444 U.S. at 296. The Court stated that

although:

foreseeability is [not] wholly irrelevant ... the
foreseeability that is critical to due process analysis
is not the mere likelihood that a product will find
its way into the forum State. Rather, it is that the
defendant’s conduct and connection with the
forum State are such that he should reasonably
anticipate being haled into Court there. (citation
omitted) The Due Process Clause, by ensuring the
‘‘orderly administration of the laws,’’ (citation
omitted) gives a degree of predictability to the legal
system that allows potential defendants to structure
their primary conduct with some minimum
assurance as to where that conduct will and will
not render them liable to suit.

When a corporation ‘‘purposefully avails itself of
the privilege of conducting activities within the
forum State,’’ (citation omitted) it has clear notice
that it is subject to suit there... .°

5. Significantly, the Court noted that absent some ‘‘purposeful availment’’
by the defendant corporation of the ‘* ‘privilege[s] of conducting activities with

the forum State,

** due process does not permit the assertion of personal
(Cont’d)

13

Id. at 297. The Court further explained that foreseeability is
relevant to personal jurisdiction only if the sale of a product of
a manufacturer or distributor arises from the defendant’s
expectation and efforts to serve, directly or indirectly, the market
in the forum rather than from an isolated occurrence of purchase.
Id. Thus, unless a defendant delivers his product into the stream
of commerce with the expectation that it will be purchased by
consumers in the forum, it is unconstitutional and unreasonable
to require that the non-resident defendant be compelled to defend
a suit in the forum. /d.°

World-Wide Volkswagen did not overrule the ‘‘purposeful
availment’’ standard set forth in Hanson v. Denckla. Instead,
the Court refined the scope of the ‘‘minimum contacts’’ due
process analysis by holding that the assertion of personal
jurisdiction requires at least an effort to transact business, either
directly or indirectly, in the forum state. Under World-Wide
Volkswagen, it is such purposeful conduct of the defendant and
not the location of the product which is determinative of the issue.
Thus, World-Wide Volkswagen controls the disposition of this
case because petitioners failed to establish the existence of any
conduct by respondent which rose to the level of any effort to

(Cont'd)

jurisdiction over nonresident defendants based on the ‘‘unilateral activity’’ of
plaintiffs over which defendants exercise no control. /d. at 297 quoting Hanson
v. Denckla, 357 U.S. at 253. There was a “‘total absence of those affiliating
circumstances that are a necessary predicate to any exercise of state-court
jurisdiction.”’ Jd. at 295.

6. The Court also rejected the argument that jurisdiction could be supported
by the fact that the defendant enjoyed certain indirect benefits such as earning
revenues from goods used in the forum state. World-Wide Volkswagen, 444
U.S. at 298-299. ‘*[F]inancial benefits accruing to the defendant from a collateral
relation to the forum state will not support jurisdiction’’ unless they stem from
a ‘‘constitutionally cognizable contact’’ with that state. /d. at 299 quoting Kulko
v. California Superior Court, 436 U.S. at 94-95.

14

transact any business, directly or indirectly, in the forum State
of Georgia.

Although Octagon manufactured a solvent for the
Department of Defense pursuant to government contract, and
under the government’s specifications anc supervision, the record
is devoid of any conduct of Octagon directed toward Georgia,
either directly or indirectly. The record is absolutely clear that
Octagon did not have any expectation or make any efforts,
whatsoever, to market directly or indirectly the solvent in Georgia.
Manifestly, the record demonstrates that Octagon did not deliver
its product into the ‘‘stream of commerce’’ with the expectation
that the solvent would be purchased by consumers in the State
of Georgia. Accordingly, petitioner’s reliance on the ‘‘stream of
commerce’’ theory is misplaced under the facts of this case.

Although World-Wide Volkswagen explicitly rejected the
concept that ‘‘mere foreseeability’’ was enough to subject a non-
resident corporation to personal jurisdiction in the forum state,
petitioners vainly seek to employ the ‘‘foreseeability’’ concept,
albeit under the rubric of the ‘‘stream of commerce’’ theory, to
attempt to subject Octagon to in personam jurisdiction in Georgia.
The petitioners’ argument is equivalent to the proposition that
one’s product becomes one’s agent for service of process, a
proposition squarely rejected by World-Wide Volkswagen.

Simply stated, petitioners are in error and World-Wide
Volkswagen compels the conclusion that the case was properly
dismissed for lack of personal jurisdiction. The lower courts
focused upon Octagon’s conduct and connection with Georgia
and properly concluded that Octagon was not amenable to suit
in Georgia. Further, because this case does not involve a sale of
a product to a consumer, World-Wide Volkswagen also compels
the conclusion that Octagon is not subject to personal jurisdiction
in the State of Georgia. Moreover, the unilateral conduct of the

15

United States government in controlling the destination of the
product defeats petitioners’ allegation of personal jurisdiction over
Octagon. Helicopteros Nacionales, supra.

D. Asahi Does Not Control the Disposition of this Case.

Petitioners rely heavily upon the case of Asahi Metal Industry
Co. v. Superior Court, 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed.
2d 92 (1987). In Asahi, a Japanese supplier sold tire valves to
a Taiwanese manufacturer, knowing that some of the valves would
be assembled in Taiwan into tires bound for sale in the United
States. The plaintiff suffered injury from a defective tire and filed
suit in California against the tire manufacturer. The manufacturer
cross-claimed against the Japanese supplier for indemnification.

Although the Supreme Court was unabie to agree on the
appropriate parameters of ‘‘minimum contacts’’ under the facts
of the case, the Court unanimously agreed that it would be
unreasonable to hold the Japanese supplier amenable to personal
jurisdiction in California under the second prong (i.e., the
reasonableness of exercising jurisdiction) of the /nternational Shoe
test. In Wright & Miller, Federal Practice and Procedure: Civil
2d § 1067 at 289 (1987), the authors succinctly analyze the voting
split of the Asahi Court as follows:

Although the Supreme Court agreed unanimously
on other grounds that the California court’s
exercise of jurisdiction was unreasonable [under
the second prong of the /nternational Shoe test],
Justice O’Connor, in a portion of her opinion for
the Court that was joined only by the Chief Justice
and Justices Powell and Scalia, also argued that
jurisdiction could not be justified under the stream
of commerce theory. She took the position that
‘*{t]he placement of a product into the stream of

16

commerce, without more, is not an act of the
defendant purposefully directed toward the forum
state.’’ Rather, ‘‘additional conduct’’ indicating
‘‘an intent or purpose to serve the market in the
forum state’’ also is necessary.’

Justice Brennan, joined by Justices Blackmun,
Marshall, and White, disagreed, arguing that a
defendant properly may be subject f9 jurisdiction
whenever ‘‘the regular and anticipated flow of
products,’’ as opposed to ‘‘unpredictable currents
or eddies,’’ leads the product to be marketed in
the forum state.

In Asahi the Court decided the case based upon the second
prong of the /nternational Shoe two-part test, and arguably never
had to reach the first prong of the /nternational Shoe test (i.e.,
minimum contacts). What is clear from Asahi, however, is that
the mere fact that one’s product finds its way into the forum
State is insufficient in and of itself to sustain an assertion of in
personam jurisdiction. Although Justice Brennan, joined by
Justices White, Marshall and Blackmun was more willing to
embrace a ‘‘stream of commerce’’ theory, he was unwilling to
totally abandon the requirement that there be some transaction
of business in the forum state. Justice Brennan’s opinion was
based upon the statement in World-Wide Volkswagen that
jurisdiction might be proper where products are delivered into
commerce ‘‘with the expectation that they will be purchased by
consumers in the forum State.’’ Justice Brennan focused on
whether the defendant ‘‘is aware that the final product is being
marketed in the forum State’’ because such a defendant ‘‘benefits
economically from the retail sale of the final product in the forum

—

This position comports with traditional Supreme Court jurisprudence
and was adopted by the lower courts in this case

17

State, and indirectly benefits from the State’s laws that regulate
and facilitate commercial activity.’’ Asahi, 480 U.S. at 117. Thus,
the difference of opinion in Asahi, was largely whether due process
requires that the defendant have somehow actively engaged,
directly or indirectly, in commercial activity in the forum state
or whether passive indirect benefits from a commercial transaction
of others within the forum state are enough for the assertion of
jurisdiction.

In applying Asahi to the present matter, it is clear that neither
Justice O’Connor’s plurality opinion nor Justice Brennan’s
concurring Opinion support an assertion of in personam
jurisdiction over Octagon because there was no commercial
transaction in the forum State of Georgia.

E. There Is No Split of Opinion in the First, Fifth and Seventh
Circuits.

Petitioners assert in conclusory fashion, and without
explanation, that the Eleventh Circuit decision in this case is in
conflict with certain decisions of the First, Fifth and Seventh
Circuits. There is no ‘‘intolerable conflict’’ in either principle or
outcome between the Eleventh Circuit’s decision in this case and
the decisions in the First, Fifth and Seventh Circuits cited by
petitioners. The Circuit cases cited by petitioners consist of entirely
different facts wherein the defendants (all alien corporations)
maintained sufficient activities in or in connection with the forum
State to support a finding of personal jurisdiction. In addition,
these cases all involved sales of products by a manufacturer which
were purposely directed to the forum state, unlike this case where
the solvent was manufactured pursuant to government contract,
specifications and supervision. Thus, all of the Circuit cases relied
upon by petitioners are absolutely distinguishable, non-controlling
and inapposite to this case.

18

Petitioners cite Benitez-Allende v. Alcan Aluminio Do Brasil,
S.A., 857 F.2d 26 (Ist Cir. 1988), cert. denied, 489 U.S. 1018,
109 S.Ct. 1135, 103 L.Ed.2d 196 (1989), while conceding that
the facts involved direct marketing by the defendant in the forum
State (Pb at 18). The First Circuit held that a Brazilian
manufacturer of pressure cookers was subject to personal
jurisdiction in Puerto Rico. The First Circuit found that the
Brazilian manufacturer sold hundreds of thousands of pressure
cookers to persons in the United States and Puerto Rico; that
the manufacturer knew and intended that Americans would use
its cooker in commerce in America; and most importantly, that
the manufacturer had taken active steps to directly market and
sell its product in Puerto Rico, including the retention of a Florida
‘sales representative’’ who travelled to Puerto Rico to sell cookers
at least four times a year. /d. at 29.

In Irving v. Owens-Corning Fiberglas Corp., 864 F.2d 383
(Sth Cir.), reh’g denied, 872 F.2d 423, cert. denied sub nom.,
Jugometal Enterprise For Import and Export of Ores and Metals
v. Irving, ___ U.S. ___, 110 S. Ct. 83, 107 L. Ed. 2d 49 (1989),
the Fifth Circuit ruled that a Yugoslavian asbestos distributor
was subject to the exercise of personal jurisdiction in Texas under
the state’s long-arm statute. The Fifth Circuit held that the asbestos
distributor was subject to personal jurisdiction in Texas where
it held itself out as a seller in a contract to supply asbestos to
an American company-broker in Texas; conveyed the asbestos
to a freight forwarder for shipment to Texas; shared the cost of
quality control testing done by a Texas laboratory; received debits
for the shipping bag-cleaning charges of another Texas company;
and accepted payments for the asbestos and stored it in Texas.
Id. at 386. The Fifth Circuit concluded that these direct and

substantial actions by the Yugoslavian asbestos distributor with
the forum State of Texas satisfied the minimum contacts prong
of the due process test, and thus subjected the Yugoslavian asbestos
manufacturer to personal jurisdiction in Texas. /d.

19

In Gulf Consol. Services v. Corinth Pipeworks, S.A., 898
F.2d 1071 (Sth Cir.), cert. denied, ___ U.S. ___., 111 S. Ct.
256, 112 L. Ed. 2d 214 (1990), the Fifth Circuit, in a 2 to 1 decision,
held that a Greek oil field casing manufacturer, which directly
marketed its product in Texas, was subject to personal jurisdiction
in Texas. The majority opinion concluded that, ‘‘a Greek oil field
casing manufacturer, licensed by a Texas-based organization which
allows the [Greek] manufacturer to warrant conformity with
certain set [American Petroleum Institute (‘‘API’’)] standards,
was properly haled into court in Texas to answer a claim that
its products failed to conform to those standards.’’ /d. at 1072.
The Fifth Circuit concluded that the exercise of personal
jurisdiction was appropriate where the Greek manufacturer sold
and shipped oil casings to a Texas importer; the Greek
manufacturer had a license agreement with another Texas
organization to sell API specification pipe; the Texas importer
relied on the Greek manufacturer’s warranty that the casing was
manufactured in accordance with API specification; the Greek
manufacturer’s sole market was Texas; the Greek manufacturer’s
representatives frequently called on customers in Texas; and the
Greek manufacturer, ‘‘was the charterer of the vessels which
carried the casing shipments from Greece to Houston.”’ /d. at
1074. Circuit Judge Rearley dissented and expressed the opinion
that in the subject contract case, the Greek manufacturer had
not attempted to exploit the Texas market and that the Texas
courts did not have personal jurisdiction under either prong of
the personal jurisdiction test.

In Mason v. F. LLI Luigi & Franco Dal Maschio Fu G.B.
5.n.c., 832 F.2d 383 (7th Cir. 1987), the Seventh Circuit held that
an Italian partnership that manufactured a broom flagging
machine which injured a worker, was subject to personal
jurisdiction in Illinois under the state’s long-arm statute. The
machine was manufactured by an Italian partnership, F. Lli Luigi

—v—— oo

20

and Franco Dal Maschio Fu G.B. s.n.c. (‘Dal Maschio’’), in Italy.
The machine was sold by Dal Maschio to Werner Petzold & Co.
(‘‘Petzold’’) in Maryland. In turn, Petzold sold the machine to
the Libman Broom Company in Illinois, where the worker was
injured. The Seventh Circuit concluded that Dal Maschio had
had sufficient minimum contacts to subject it to personal
jurisdiction in Illinois:

In this case, Dal Maschio made the machine
involved in the accident and similar machines
especially for Libman, and one of its employees
visited Libman in Illinois several times to show
how to set up, operate and service the machines
and to teach its personnel. Dal Maschio knew that
the machines were custom-made for an Illinois
manufacturer, viz., Libman, even though shipped
and billed to Werner Petzold & Co. in Maryland.
Werner Petzold was in fact its export manager
rather than an independent distributor. The injury
occurred to an Illinois resident in Illinois, and
Illinois has an interest in having that injury fully
rectified.

Id. at 386.°

The Circuit cases cited by petitioners do not present a conflict
with the decision of the Eleventh Circuit in this case. All of the

8. The Seventh Circuit stated that,‘‘[l]ike the example used in World-Wide
Volkswagen to show where personal jurisdiction would be proper, this defendant
delivered its products into the stream of commerce with the expectation that
they will be purchased by consumers in the forum state. 444 U.S. at 297-98,
100 S.Ct. at 567-68. In addition, it purposely availed itself of the privileges
of conducting activities within the forum state through its own employee and
also its export manager Werner Petzold.’’ See 444 U.S. at 297, 100 S. Ct. at
587. Mason, 832 F.2d at 386.

21

re Circuit cases cited by petitioners involved direct and purposeful
acts taken by foreign manufacturers to avail themselves of a
defined market within the United States. Petitioners’ aliegation
of a conflict among the Circuits is therefore meritless.’

THE ELEVENTH CIRCUIT DID NOT COMMIT ERROR
BY DISMISSING THE CASE RATHER THAN
TRANSFERRING THE CASE TO NEW JERSEY PURSUANT
TO 28 U.S.C. § 1406(a), WHERE PETITIONERS NEVER
REQUESTED OR RAISED THE TRANSFER ISSUE TO THE
DISTRICT COURT.

Petitioners assert that the lower courts erred by dismissing
this case, rather than sua sponte transferring the case to the District
Court for New Jersey. Petitioners claim error for their self-inflicted
failure to raise and present the transfer issue to the District Court.
Significantly, petitioners never raised this issue to the District Court
by motion, opposition brief, pleading or otherwise. Petitioners
noted the issue for the first time before the Eleventh Circuit after
their ‘‘all or nothing’’ tactic before the District Court proved to
be unsuccessful. The Court of Appeals declined to find error based
on the record before it.

The exercise of discretion by the courts beiow is not an issue
which merits the grant of a writ of certiorari. It does not effectuate
a change in the law which will have an impact on other litigants,
nor does it present an issue which calls for a pronouncement from

9. Petitioners’ conclusory allegation in their Petition for Writ of Certiorari
that the decision in this case is contrary to Morris v. S.S.E. Inc., 843 F.2d
489 (llth Cir. 1988) is without merit. The Eleventh Circuit has consistently
applied the Asahi ‘‘purposeful availment’’ plurality standard. See, Morris v.
S.S.E., Inc. supra; Madara v. Hall, 918 F.2d 1510 (11th Cir. 1990) (not cited
by petitioners) and Bond v. Octagon Process, Inc., supra.

ee

22

the Supreme Court of the United States. The decision of the
District Court has already been reviewed by the Eleventh Circuit
and found to have been proper.

Petitioners first raised the issue of transfer in their appeal
to the Eleventh Circuit. The Eleventh Circuit declined to reverse
the District Court because petitioners had failed to raise the issue
below. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S. Ct.
719, 85 L. Ed. 1037 (1941) (‘‘Ordinarily an appellate court does
not give consideration to issues not raised below.’’). Similarly,
petitioners’ reliance on Goldlawr v. Heiman, 369 U.S. 463, 82
S. Ct. 913, 8 L. Ed. 2d 39 (1962) was apparently deemed misplaced
by the Eleventh Circuit, in view of petitioners’ failure to raise
the issue with the District Court, despite ample opportunity to
do so.'°

Petitioners also rely on 28 U.S.C. § 1406(a), which provides
that:

The district court of a district in which is filed a
case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in
which it could have been brought . .

10. Petitioners’ argument that they would have lost their right to appeal
the personal jurisdiction issue by moving before the District Court for transfer
of the case is incorrect. Petitioners could have preserved their right to appeal
the personal jurisdiction issue by, inter alia, seeking the alternative relief of
a transfer and a stay of that transfer pending the outcome of appellate review
on the personal jurisdiction issue. In the alternative, after the District Court
decided the personal jurisdiction issue, petitioner could have sought
reconsideration on the issue of transfer or sought relief pursuant to F. R. Civ.
P. 60. They elected to pursue only this appeal, and should not be heard to
complain when their election was unwise. The lack of a transfer was thus
petitioners’ error, not the District Court’s error.

23

The statute directs a District Court to dismiss a case as the
primary form of relief. There are no facts in the record below
indicating that transfer as opposed to dismissal is in the interests
of justice. Since petitioners never raised the issue of transfer to
the District Court, the District Court did not commit any error
or abuse of discretion by applying the plain language of the statute.
See United States v. Wright Motor Co., Inc., 536 F.2d 1090,
1093-94 (Sth Cir.), reh’g. denied, 542 F.2d 576 (Sth Cir. 1976)''
{‘‘If reasonable men could differ as to the propriety of the action
taken by the trial court, then it cannot be said that the trial court
abused its discretion.’’ quoting Lines v. Falstaff Brewing Co.,
233 F.2d 927, 933 (9th Cir.), cert. denied, 352 U.S. 893, 77 S.
Ci. 129, 1 L. Ed. 2d 88 (1956)]. Indeed, none of the cases cited
by petitioners supports the proposition that a failure to transfer,
sua sponte, constitutes error of any sort. For these reasons, the
lower courts did not err in dismissing the case.

11. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981),
(en banc), the Eleventh Circuit adopted as binding precedent all decisions of
the former Fifth Circuit handed down prior to October |, 1981.

24

CONCLUSION

For the reasons presented herein, it is respectfully urged that
the Petition for Writ of Certiorari be denied.

Respectfully submitted,

CARL R. WOODWARD, III
Counsel of Record

KENNETH L. WINTERS
WALTER G. LUGER
CARELLA, BYRNE, BAIN,
GILFILLAN, CECCHI

& STEWART

Attorneys for Respondent

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2022%3A2. Public record. Not legal advice.