# Opposition Brief — Jensen v. Gates Learjet Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0068%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1066 ## Text OE" LVIIVY Ofc. Soprene Court US.) FILED APR 4 1985 ALEXANDER Lt. STEVAS. CLERK Supreme Court of the United States Ocroser TERM, 1984 JAMES B. JENSEN, JR.; RICARDO S. TOMACRUZ; LEARJET PHILIPPINES, INC., a corporation; JAMES B. JENSEN & CO., INC., a corporation and HAMIX INTERNATIONAL, LTD., a corporation, Petitioners, v. GATES LEARJET CORPORATION and GATES LEARJET EXPORT CORPORATION, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION MICHAEL J. Rusinc Wr1aM H. TInNEy P. O. Box 871 Tucson, Arizona 85702 (602) 792-4800 Attorneys for Respondents Of Counsel: BILBY & SHOENHAIR, P.c., BEST AVAILABLE COPY ee “eee \0? 3 RULE 28.1 DISCLOSURE Gates Corporation is the parent company of Gates Learjet Corporation and owns in excess of 50% of the outstanding common stock of Gates Learjet Corporation. Gates Learjet Export Corporation is a wholly owned subsidiary of Gates Learjet Corporation. i TABLE OF CONTENTS Page assis ienicicisa cpadetsnsinnnonasaserseinncnsmnenes ii I WEE RU I i iin ee leis cescancrotave 2 I i cccscnsnncininnpaarbiananssancamtsnsninencs 2 Reasons why the writ should be denied ...................... 7 I. There are no special or important reasons for granting review on the I ir IN sine csese lassie ccicctssnienrianinnnonnses 7 II. The decision of the Ninth Circuit RN sa cash hhc cintcicip nase tania caasaekictlindicanbanaeciies 11 pb PES ELI SAT PL LT LTE RAEN ALTE 18 Certificate of filing and service ................2.0..0020.0.000-- 20 ii TABLE OF AUTHORITIES Page CASES Burke v. Musarra, 46 Misc.2d 933, 261 N.Y.S.2d 314 (195) cccccsccccccccesesseeeeseseeesesteeee 14 Calder v. Jones, U.S. ____ 79 L.Ed.2d 804, 104 S.Ct. 1482 (1984) occ ecceeccccecceeeeeeee 14 Freides v. Sani-Mode Manufacturing Co., 33 Ill.2d 291, 211 NE 296 (1965) 2.00022. 14 Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, G1 L.Ed. MK (ES 16 Helicopteros Nacionales de Columbia v. Hall, pao, FS , 80 L.Ed.2d 404, 104 S.Ct. 10068 (1GM4) ......c eee 8, 9, 10, 15, 19 Keeton v. Hustler Magazine, Inc., avcsnsiae SN , 79 L.Ed.2d 790, 104 S.Ct. 1678 (1008) nl 9, 10 La Seguridad v. Transytur Line, 707 F.2d 104 (1th Cie OS a. 16 Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62 (2nd Cir. 1981) eee 16 Mead Johnson & Co. v. Baby's Formula | Service, Inc., 402 F.2d 19, (5th Cir. 1968) _........... 14 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L.Ed.2d 419, 102 S.Ct. 252 (1981) 0.20... 16 Powder Horn Nursery, Inc. v. Soil and Plant Laboratory, Inc., 20 Ariz. App. 517, 514 Pod 20 (098) ic 13 TABLE OF AUTHORITIES (Continued) Page CASES Russ v. Savchuk, 444 U.S. 320, 62 L.Ed.2d TG Ra 13 Solo Cup Company v. Paper Machinery Corp., gS | 14 Steak & Brew, Inc. v. Makins, 177 U.S.P.Q. 412 Neen ec cvcusnssisansnsenconinanedananiness 14 STATUTES aiid i cccncasineantrsivesnnuastnndansesnsonsuecnaniioses 2 No. IN THE Supreme Court of the United States OctToBER TERM, 1984 JAMES B. JENSEN, JR.; RICARDO S. TOMACRUZ; LEARJET PHILIPPINES, INC., a corporation; JAMES B. JENSEN & CO., INC., a corporation and HAMIX INTERNATIONAL, LTD., a corporation, Petitioners, V. GATES LEARJET CORPORATION and GATES LEARJET EXPORT CORPORATION, Respondents. ON PETITION FORA WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION Respondents, Gates Learjet Corporation and Gates Learjet Export Corporation, respectfully request that this Court deny the Petition for Writ of Certiorari, seek- ing review of the Ninth Circuit's opinion in this case. That opinion is reported at 743 F.2d 1825 and is attached hereto as Appendix A. PARTIES Petitioners’ statement of the parties to the proceed- ing in the Ninth Circuit Court of Appeals is incorrect. However, the caption of the case in this Court contains the names of all such parties. 2 JURISDICTION OF THIS COURT Contrary to Petitioners’ statement as to this Court's jurisdiction to review the decision of the Ninth Circuit Court of Appeals, jurisdiction in such circumstances is governed by 28 U.S.C. § 1254. STATEMENT OF THE CASE Gates Learjet Corporation is the manufacturer of executive aircraft known as Learjets. Gates Learjet Ex- port Corporation is a wholly owned subsidiary engaged in international marketing. They will be referred to collectively as “Gates”. A large part of the production, administration and distribution occurs in Tucson, Arizona. James B. Jensen, Jr. (“Jensen”) is a United States citizen with residence in California and the Philippines. Ricardo S. Tomacruz (“Tomacruz’) is a citizen and resident of the Philippines. Learjet Philippines, Inc. (“LPI”) is a Philippine corporation. James B. Jensen & Co., Inc. (“Jensen Inc.”) is a California corporation whose principal place of business is San Francisco, California. Hamix International, Ltd. (“Hamix”) is a non-resident foreign corporation whose principal place of business is Hong Kong, British Crown Colony. There is substantial evidence that the corporations are mere conduits/alter egos for each other and Jensen and Toma- cruz. Respondents’ Appendix B. See also, Petitioners’ Appendix 5. Jensen is the President of both Jensen, Inc. and LPI. In February of 1978, Jensen travelled to Tucson, Arizona to be on hand when a purchaser accepted delivery of a jet manufactured by Gates. During this visit, Jensen 3 solicited from Gates the opportunity to become the Learjet distributor in the Republic of the Philippines. Negotiations with regard to this International Distribu- torship Agreement occurred while Jensen was in Tucson, Arizona, and by telephone, correspondence, and telex from Tucson to San Francisco and Manila. An International Distributorship Agreement was ultimately entered into between Gates and LPI. This Agreement provides that: “It is expressly agreed and understood that this Agreement is an Arizona agreement and that it shall be governed by the laws of the State of Arizona of the United States of America in all matters, includ- ing, but not limited to, validity, obligation, inter- pretation, construction, performance and termina- tion.” The first Agreement was entered into in 1978 for a period of one year or a part thereof, and was in fact renewed for two additional years and finally extended by letter agreement for a period of an additional four months. During the terms of the Agreements, Jensen and Tomacruz made numerous trips to Arizona on behalf of LPI. Jensen came to Tucson at least seven times be- tween February of 1978 and September of 1981. Among the other contacts, Jensen attended and par- ticipated in Gates’ annual distributor conferences held in Tucson in 1978, 1979 and 1980. On various other occasions during 1978, 1979 and 1980, Jensen dealt with various Gates personnel at Gates’ marketing headquar- ters and the manufacturing plants located at the Tucson International Airport in Tucson, Arizona. These dealings 4 were for the purpose of negotiating the purchase of Learjet aircraft, for the purpose of accepting delivery of such aircraft, or for the purpose of negotiating terms and conditions under which Jensen and his company would continue to serve as a Gates Learjet distributor. During the term of the Agreement, LPI and its principals, Jensen and Tomacruz, entered into numerous Airplane Purchase Agreements with Gates in Tucson. Each of these Airplane Purchase Agreements contains a provision stating that: “This Agreement shall be construed in accordance with and its performance shall be governed by the laws of the State of Arizona. The courts of Arizona shall have exclusive jurisdiction to hear and deter- mine all claims, disputes, actions or suits which may arise hereunder.” Delivery of these airplanes occurred in Tucson, Arizona, with Jensen and/or Tomacruz in attendance. LPI, Jensen and Tomacruz purchased quantities of spare parts from Gates. These purchases totalled over $200,000.00 for 1980 and 1981 combined. Additionally, numerous letters, telexes and tele- phone calls went back and forth between Gates in Tucson and LPI, Jensen and Tomacruz in the Philip- pines and/or San Francisco. Gates changed emphasis with its distributors from quota sales to service in 1981, after first so advising all distributors in September of 1980 at an Executive Busi- ness Jet national convention. 5 LPI, as well as all other distributors, was advised to create and maintain service capability. LPI, contrary to requests, never obtained its own hangar, mechanics or tools in its area of distributorship (Manila). In June, July and August of 1981, written communi- cations and discussions in Tucson took place between Gates and LPI. LPI adopted the position that its bor- rowed hangar space, borrowed tools and borrowed me- chanics enabled it to provide adequate service. In Sep- tember of 1981, Gates made a tentative decision not to renew LPI’s Distributorship Agreement. This decision was finalized on October 15, 1981, by letter to LPI. LPI was one of several distributors not to have its distributor- ship renewed in 1981. On October 29, 1981, Gates sent a potential Philip- pines customer a letter saying Gates would have a dem- onstration of an executive business jet in Manila, Philip- pines, in November of 1981. Gates sent a Learjet to Manila on November 28, 1981, with its far eastern sales representative and two pilots. LPI, upon learning of the demonstration, caused a criminal complaint to be filed against Gates’ repre- sentative for not having a Philippine business license. As a result, the sales zepresentative was arrested and the jet impounded. As Gates was having the sales repre- sentative freed and jet released, LPI filed a lawsuit which further detained the employee and the aircraft. Gates obtained the release of its far eastern representa- tative on Christmas Eve, 1981. LPI continued to use the tradename and trade- mark of Learjet after notice of non-renewal of their 6 distributorship. The Distributorship Agreement forbids such continued use. On February 3, 1982, Gates filed a four count com- plaint in the Pima County Superior Court of the State of Arizona. Defendants in the complaint are LPI and related companies and individuals: Jensen, Tomacruz, Jensen Inc. and Hamix (hereinafter collectively referred to as “Petitioners” ). Count One of the complaint alleges unauthorized use of Gates’ tradenames and trademarks by all of the Defendants, in violation of Distributorship Agreement, after non-renewal of the Agreement. Count Two is against Jensen and Tomacruz for abuse of pro- cess arising out of the seizure by Philippine authorities of an aircraft owned by Gates and the jailing of the Gates employee. Count Three alleges that Jensen and Tomacruz interfered with céntractual relations between Gates and customers in the Philippines. Count Four al- leges conspiracy by all Defendants to make unauthorized use of Gates’ trademark and tradename. A petition for removal of the action was filed by Jensen and Jensen Inc. The removal was based upon diversity of citizenship. Jensen and Tomacruz answered and later filed an Amended Counterclaim in six Counts. The Counter- claim added three new parties to the litigation as counter-defendants: B. S. Stillwell, Jane Doe Stillwell, (“Stillwell”) and Stillwell Aviation Australia, Pty., Ltd. (“Stillwell Aviation’ ). On June 30, 1982, Jensen Inc. filed a Motion to Dismiss the complaint for lack of jurisdiction over the person. On September 23, 1982 the United States District 7 Court (Marquez, J) entered an order denying Jensen Inc.'s Motion as to Counts One and Four of the com- plaint and granting the Motion as to Counts Two and Three. On April 20, 1983, .the remaining Defendants moved the court to clarify that Counts Two and Three were dismissed as to all Defendants because of lack of jurisdiction over their persons. On May 31, 1983 the United States District Court “clarified” its order of September 23, 1982 to reflect that Counts Two and Three were dismissed as to all parties named in those Counts. Gates appealed from that ruling. The second issue on appeal involved the District Court’s dismissal of Counts One and Four of the com- plaint under the doctrine of forum non conveniens. Pe- titioners did not challenge the convenience of the forum until October 5, 1983, after 18 months of discovery and trial preparation. Gates filed an Opposition to the Motion to Dismiss on October 12, 1983. In a “Memorandum of Decision and Order”, dated November 1, 1983, the Court dismissed the complaint, subject to certain conditions. A Notice of Appeal as to both issues was filed on November 30, 1983. On September 27, 1984, the United States Court of Appeals, Ninth Circuit, reversed both of these rulings and remanded the action to the District Court for further proceedings. On November 27, 1984, a Petition for Rehearing and Rehearing in Banc was denied. REASONS WHY THE WRIT SHOULD BE DENIED I. There are no special or important reasons for granting review on the Writ of Certiorari. 8 The decision of the Ninth Circuit presents no unique, special or important issues with which to deal. There is no conflict between Federal Courts of Appeals, there is no important question of federal law, nor is there any particularly significant issue to be resolved. The opinion of the Ninth Circuit dealt with two topics: personal jurisdiction and forum non conveniens dismissals. As to the former, inquiries into the existence or non- existence of personal jurisdiction require case by case determinations which turn on the peculiar facts of each action. There is nothing special about this case which would allow this Court to clarify the law in an area, resolve a conflict, etc. Contrary to Petitioners’ contention, the case of Helicopteros Nacionales de Columbia v. Hall, US. ___*, 80 L.Ed.2d 404, 104 S. Ct. 1868 (1984) is not factually similar to the instant case. Neither does it “leave unanswered’ a legal question which this case will allow this Court to resolve. Specifically, Helicopteros Nacionales is a wrongful death action arising out of a helicopter crash in Peru brought by the survivors of a United States citizen against a Columbian corporation. Substantial and significant factual differences exist be- tween that case and the case at bar which render them inapposite. For example, a wrongful death action in- volves negligence, rather than intentional acts, which are involved in the present case. Additionally, the action in Helicopteros Nacionales did not arise out of a forum- related contract. There was a contract tangentially in- volved, but it was executed in Columbia not the United States. Indeed, both parties in the Helicopteros Nacio- nales case conceded that the action did not arise out of that contract. 9 Finally, and most importantly, Petitioners misrepre- sent, and misstate by selective quotes, the “unanswered question” in the Helicopteros Nacionales case, id. at fn.10. Petitioners seem to suggest that the Helicopteros Nacionales case left open the question of whether a state could exercise “specific jurisdiction” over a defen- dant in a suit arising out of or related to the defendant's contacts with the forum. In fact, this Court in Helicop- teros Nacionales tacitly recognized and accepted such a status and stated: “When a controversy is related to or ‘arises out of a defendant's contacts with the forum, the court has said that a ‘relationship among the defendant, the forum, and the litigation’ is the essential founda- tion of in personam jurisdiction.” Id. at , 80 L.Ed.2d at 411, 104 S. Ct. at 1873, Citing to footnote 8. Footnote 8 reads: ‘It has been said that when a state exercises per- sonal jurisdiction over a defendant in a suit aris- ing out of or related to the defendant’s contacts with the forum, the state is exercising specific jur- a over the defendant.” (Citations omitted ). Id. Additionally, the general jurisdiction/specific jurisdic- tion distinction was acknowledged in Keeton v. Hustler Magazine, Inc., ___. US. , 79 L.Ed.2d 790, 104 S.Ct. 1473 (1984) wherein the Court stated: “In the instant case, respondent’s activities in the forum may not be so substantial as to support jur- isdiction over a cause of action unrelated to those activities. But respondent is carrying on a ‘part of its general business’ in New Hampshire, and that 10 is sufficient to support jurisdiction when the cause of action arises out of the very activity being con- ducted, in part, in New Hampshire.” Id. at , 79 L.Ed.2d at 801, 104 S.Ct. 1473 The answered question referred to in footnote 10 of Helicopteros Nacionales is not whether there is a dis- tinction between general and specific jurisdiction, but rather “whether the terms ‘arising out of and ‘related to’ describe different connections between a cause of action and a defendant’s contacts with the forum” for the purposes of exercising specific jurisdiction. (This particular section of footnote 10 was deleted by Peti- tioners and an elipses substituted ). Thus, rather than not deciding whether specific jurisdiction (or “limited jur- isdiction” as the Ninth Circuit labels it) exists as a con- cept, this Court simply left open a sub-issue of that inquiry. That sub-issue is not raised in the current case. As to the forum non conveniens issue, the Ninth Circuit Court of Appeals reversed the District Court's dismissal of the remaining counts of the complaint, Counts One and Four. The District Court desired that these Counts be tried in the Philippines. This ruling also presents no unique or important matters of law for this Court to address. If the case goes on to trial in Tucson, as currently planned, Petitioners will incur no real preju- dice because there is nothing wrong or unfair about Tuc- son as a forum. Petitioners have never questioned their ability to get a fair trial in Tucson, so justice can ulti- mately be obtained in that location. Additionally, there is no absolute right to a change of forum for conyenience sake. Since it is a discretionary matter, Petitioners’ inabil- ity to obtain a different forum does not impact any of its “rights”, nor is it violative of due process. ee ee ra 11 Finally, one of the thrusts of Petitioners argument regarding forum non conveniens is that the Court of Appeals did not consider the effect of bringing Counts Two and Three back into the case when it reviewed the propriety of the forum non conveniens dismissal of Counts One and Four. Petitioners contend that, when the aggregation of all four counts is considered, it is clear that the Philippines is the more appropriate forum for the entire case. However, it is not for an Appellate Court to make that inquiry. The question has never been de- cided by the District Court and, until it has, appellate review is premature and improper. II. The decision of the Ninth Circuit was correct. A. Arizona has personal jurisdiction over LPI, Jensen and Tomacruz as to Count Two of the Complaint, and per- sonal jurisdiction over Jensen and Tomacruz as to Count Three of the Complaint. The Ninth Circuit opinion reveals a well reasoned discussion of the specific facts of this case and a proper application of the prevailing law on personal jurisdiction to those facts. The decision of the District Court dis- missing Counts Two and Three of the complaint on per- sonal jurisdiction grounds was properly reversed. Petitioner contends that there is some infirmity with the opinion of the Court of Appeals because it focuses only on the forum-related contacts of “Learjet Philip- pines, Inc. (by and through petitioners Jensen and Toma- cruz) ... Yet it reversed the dismissal of Counts II and III as to all defendants.” Writ of Certioriari, page 12. This argument fails to recognize that Counts Two and Three only involve LPI, Jensen and Tomacruz (Count Two is against all three of these parties and Count Three is only against Jensen and Tomacruz). 12 Contrary to Petitioners’ assertion, there was a ple- thora of evidence regarding the contacts these parties had with the forum state of Arizona. A number of these contacts are enumerated in the Court of Appeals deci- sion. Petitioners’ outline of their contacts with Arizona contained at pages 12-14 of the writ is misleading and inaccurate. For example, as to Jensen, Inc., Petitioners claim that the only evidence of contact was that Jensen, Inc. purchased spare parts from Gates in Wichita, Kan- sas and relayed LPI’s mail through its San Francisco office. However, it is readily apparent from a review of the facts that Jensen, on behalf of Jensen, Inc., trans- acted business in the state of Arizona and that Jensen, Inc. and LPI were used by Jensen interchangeably with a total disregard of their separate corporate entities. See Appendix B. Even the District Court, when it dismissed Counts Two and Three, spent several pages examining the forum-related conduct of Jensen, Inc. and concluded that: “The distributorship agreement was entered into only after lengthy and thorough negotiation process, during which Jensen, Inc., through its presiden:, par- ticipated fully... . Jensen, Inc. aggressively solic- ited the distributorship contract, conducting a well- planned and persuasive promotional campaign to secure the distributorship from GLC. Defendant, therefore, ‘purposely availed himself of the priv- ilege of conducting’ its working relationship with GLC within Arizona, not only in person, but through the mail, telephone and wire services.” Petitioners’ Appendix No. 5 at pages 8 and 9. The District Court in that Order also concluded that “Jensen, Inc. is an active member in the marketing activ- ity which is the subject matter of the distributorship Vile alte n a ak lida Beng te 13 agreement.” Id. at page 5. Because Petitioners’ descrip- tion of forum related activities varies widely from the facts, it is respectfully requested that this Court rely upon the jurisdictional facts as outlined in the decision of the Court of Appeals and in the Statement of Facts contained herein. Petitioners also contend that jurisdiction over Jensen and Tomacruz is based upon the conduct of LPI, and that such exercise is unfair, citing Russ v. Savchuk, 444 U.S. 320, 62 L.Ed.2d 516, 100 S.Ct. 571 (1980) and Powder Horn Nursery, Inc. v. Soil and Plant Laboratory, Inc., 20 Ariz.App. 517, 514 P.2d 270 (1973). However, these cases are inapposite both factually and legally. Russ v. Savchuk involved an attempt by a party injured in an automobile accident to obtain jurisdiction over the tortfeasor, over whom there was otherwise no per- sonal jurisdiction, by garnishing the tortfeasor’s insur- ance company, which did business in the forum. Obvi- ously, that case has no relevance here. In Powder Horn Nursery, Inc., the plaintiff was seeking to obtain jurisdic- tion over corporate employees whose only involvement was in their capacity as employees of the defendant cor- poration. The Court noted that there was nothing to indi- cate that the defendant corporate entity was used as a sham or in any manner which would justify disregarding its existence. The Court also observed that none of the individual defendants had conducted activities in Ari- zona. In the present case, the individuals are being sued 14 for their actions as individuals', allegations have been made and evidence produced indicating that the cor- porate entities are a sham, and the individual Petitioners themselves conducted activities in Arizona. It should be noted that this Court recently rejected the suggestion that corporate employees who act in their official capac- ity are somehow shielded from suit in their individual capacity. Calder v. Jones, Us. —., WLEae 804, 104 S.Ct. 1482 (1984). The Petitioners are correct that their contacts with Arizona are not to be judged according to their employers’ activities there. “On the other hand, their status as employees does not somehow insulate them from jurisdiction.” Id. at , 79 L.Ed.2d at 813, 104 S.Ct. 1482. ! Petitioners seem to suggest that Jensen and Tomacruz wouid not be subject to personal liability because they can hide behind the corporate shields of Jensen, Inc. and LPI. There are two problems with this argument. The first is that there is an allega- tion that the corporate form should be disregarded and the corporate veil should be pierced. Secondly, Jensen and Tomacruz are officers of Learjet Philippines and Jensen is an officer of Jensen Inc. Corporate officers are individually liable for torts which they personally commit and they cannot shield themselves behind the corporation when they are actual participants in the tort. Solo Cup Company v. Paper Machinery Corp., 359 F.2d 754, 760 (7th Cir. 1966). The principal applies where the conduct constitutes unauthorized use of tradenames and trademarks; Mead Johnson & Co. v. Baby’s Formula Service, Inc., 402 F.2d 19, 23 (5th Cir. 1968); Steak & Brew, Inc. v. Makins, 177 U.S.P.Q. 412 (D. Conn. 1963); or abuse of process/false imprisonment/ malicious prosecution. Burke v. Musarra, 46 Misc.2d 933, 261 N.Y.S.2d 314 (1965); Freides v. Sani-Mode Manufacturing Co., 33 Ill.2d 291, 211 N.E.2d 296 (1965). Thus, Jensen and Toma- cruz’s wrongful conduct subjects them to personal liability and, since they personally have sufficient contact with Arizona, per- sonal jurisdiction. rie Ai ke REE Nt Ns seem eiinterensee dn ie oe 15 Petitioners also question the Court of Appeals’ con- clusion that the dismissed Counts “arise out of” the distributorship agreement. The Petitioners particularly impugn such a decision as to Count Two of the com- plaint (abuse of process). However, the Court of Ap- peals examined the complaint in the Philippines upon which the abuse of process count is based and duly noted that all three counts of that action seek various damages as a result of Gates’ non-renewal of the Distributorship Agreement. Clearer evidence that the abuse of process arose out of the agreement is hard to imagine. Petitioners final contention of error with regard to the Ninth Circuit’s decision on personal jurisdiction is that a recent case, Helicopteros Nacionales, supra, is sup- portive of a contrary decision. However, by its explicit terms, the Helicopteros Nacionc'es decision was limited to the issue of whether general jurisdiction existed over the Columbian defendant, it being conceded that spe- cific or limited jurisdiction did not apply. In the case at hand, the Court of Appeals ruled in Petitioners’ favor on the issue of general jurisdiction. Thus, Helicopteros Naci- onales has no application to this case in its current pos- ture. In addition to the numerous forum related contacts, another aspect of this case which makes exercise of jur- isdiction particularly reasonable, as the Court of Appeals noted, is the fact that Petitioners would still have to liti- gate Counts One and Four of the complaint and their Six Count Counterclaim. With all those issues remain- ing, the addition of two more counts is not unduly bur- densome. It is clear from the foregoing that the Court of Ap- 16 peals decision with regard to personal jurisdiction was well reasoned and should stand as a legitimate applica- tion of the specific facts to the applicable law. Review is inappropriate. B. The Court of Appeals properly concluded that the District Court abused its discretion in granting the forum non conveniens dismissal. The Court of Appeals properly applied the abuse of discretion standard in reversing the District Court. In establishing the abuse of discretion standard, this Court noted that: “[W]here the court has considered all relevant pub- lic and private interest factors, and where its balanc- ing of these factors is reasonable, its decision de- serves substantial deference.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 70 L.Ed.2d 419, 436, 102 S.Ct. 252 (1981). Thus, a District Court abuses its discretion, and is subject to reversal, when it does not consider all the relevant factors and/or where its balancing of these factors is unreasonable. La Seguri- dad v. Transyt Line, 707 F.2d 1304, 1308 (11th Cir. 1983). “Empiasis on the District Court's discretion .. . must not overshadow the central principle of the Gilbert doctrine that ‘unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.’ ” Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2nd Cir. 1981) (quoting Gulf Oil v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed 1055, 1062 (1947) ). In analyzing the District Court’s consideration of the private interest factors, the Court of Appeals ob- 17 served that the District Court totally failed to examine at least two important factors. First, the District Court did not recognize or consider in its balancing that Gates is a United States citizen and a resident of Arizona. The second relevant private interest factor that the District Court failed to examine was that the parties were ready for trial when the Court dismissed the complaint for forum non conveniens. A prompt trial of the case in Arizona would have been more “easy,, expeditious and inexpensive’ than trial in the Philippines. In addition to not considering at all the two afore- mentioned factors, the District Court did not properly consider and weigh the private interest factor of location of witnesses. Specifically, the District Court mischar- acterized where the balance of the witnesses were lo- cated and incorrectly emphasized the number, rather than the materiality, of the witnesses.’ As to the public interest factors, the Court of Ap- peals concluded that the District Court failed to consider one such factor, was mistaken as to another and unrea- sonably overemphasized a third. Specifically, the District Court totally failed to weigh Arizona’s interest in having the controversy resolved at home. The District Court also mistakenly concluded that both Philippine and Ari- zona law would apply to the matter, when in fact only Arizona law would apply. The only remaining Counts of the complaint involved unauthorized use of trade- names and trademarks in violation of the Distributorship ? Petitioners have to this day failed to identify a single Philip- pine witness who they would like to utilize whose testimony would be unavailable in Tucson, let alone identify the content, necessity or materiality of that testimony. 18 Agreement. As previously noted, the Distributorship Agreement specifically provides that it shall be governed by Arizona law. Indeed, contrary to their assertion in their petition, Petitioners conceded that Arizona law would apply to these Counts. This occurred in Petition- ers Reply Memorandum Regarding the Motion to Dis- miss for Forum Non Conveniens at page 4, line 6-8: | “Defendant/Counterclaimants do not disagree that Arizona law applies to at least one of the —— claims (the breach of contract).” Appendix C. The Court of Appeals also concluded that the Dis- trict Court overemphasized its own crowded docket in dismissing the action. The Court of Appeals correctly observed that it is unreasonable and unfair for a court to subject a United States corporation to the courts of another country merely because the plaintiffs home country's courts are congested. In conclusion, the Court of Appeals held that the District Court failed to consider relevant private and public interest factors and unreasonably misconstrued others. The District Court therefore abused its discre- tion and the case was properly reversed and remanded for further proceedings. CONCLUSION: The Court of Appeals for the Ninth Circuit authored a very well reasoned opinion in a case that is peculiarly fact specific. This case offers no importent matters of general interest nor any significant legal issues about which there is a conflict amongst the circuits, nor any issue which calls for action by the Supreme Court. Con- trary to the contention of the petitioners, there is no 19 “unanswered question” in Helicopteros Nacionales that could be resolved by granting certiorari in this case. With regard to the forum non conveniens inquiry, the Court of Appeals properly applied an abuse of discretion stan- dard, as enunciated by this Court for use in these specific situations, and concluded that such abuse occurred. Since a defendant has no absolute right to a forum non con- veniens dismissal, an important right is not being af- fected. Finally, the ultimate forum, the Federal District Court in Tucson, Arizona, is a place where both sides can obtain a just and final result. The Petition for Writ of Certiorari should be denied. Dated April 1, 1985. By lor tetisastenadnasinanai Michael J. Rusing William H. Tinney P.O. Box 871 Tucson, Arizona 85702 Attorneys for Respondents Of Counsel Bilby & Shoenhair, P.C. 20 CERTIFICATE OF FILING AND SERVICE STATE OF ARIZONA COUNTY OF PIMA ~_" ~~" * I, WILLIAM H. TINNEY, one of the attorneys for Respondents, and a member of the Bar of the Supreme Court of the United States, hereby certify that on this Ist day of April, 1985, 40 copies of Respondents’ Brief in Opposition were mailed, postage prepaid, to the Clerk of the Supreme Court of the United States, within the time allowed for filing same. I also certify that on this lst day of April, 1985, 3 copies of the Respondents’ Brief in Opposition were mailed, postage prepaid, to Herbert Mallamo and Gary F. Howard, 4041 North Central Avenue, Suite 2001, Phoenix, Arizona 85012, attorneys for the Petitioners. I further certify that all parties required to be served have been served. WILLIAM H. TINNEY SUBSCRIBED AND SWORN to before me this Ist day of April, 1985 by William H. Tinney. My Commission Expires: Notary Public APPENDIX INDEX TO APPENDIX Page APPENDIX A — Ninth Circuit Opinion .................... la APPENDIX B — Gates Response to Defendant James B. Jensen & Co., Inc.'s Motion to Ne asc hd aie hla ana pansnneansians 24a APPENDIX C — Petitioners’ Reply Memorandum WA INT BINION i ssinnsnccensstsicntccsersiccadnsniasensnen 58a Sd Ate uta ta/ webirs la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GATES LEARJET CORPORATION and GATES LEARJET EXPORT ~~ ee ee eee CORPORATION, Plaintiffs/ Appellants, VS. JAMES B. JENSEN, JR.; No. 83-2643 RICARDO S. TOMACRUZ; ) DC No. CIV 82-139 LEARJET PHILIPPINES, INC., ) OPINION a corporation; JAMES B. JENSEN ) & CO., INC., a corporation, and _) HAMIX INTERNATIONAL, ) LTD., a corporation, ) Defendants/Apellees. ) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ALFREDO C. MARQUEZ, DISTRICT JUDGE, PRESIDING ARGUED AND SUBMITTED MAY 14, 19384 Before: CHOY, PREGERSON, and REINHARDT, Circuit Judges. CHOY, Circuit Judge: The issues on this appeal are (1) whether the dis- trict court properly dismissed counts two and three of appellant's complaint for lack of personal jurisdiction, and (2) whether the district court’s dismissal of counts 2a one and four for forum non conveniens was an abuse of discretion. On both issues, we reverse and remand to the district court. I. BACKGROUND Gates Learjet Corporation and Gates Learjet Export Corporation (“Gates”) entered into an international dis- tributorship agreement with Learjet Philippines, Inc. (“LPI”) in 1978. Gates, principally located in Tucson, Arizona, manufaciures executive aircraft known as Lear- jets. LPI is a Philippine corporation. The original agree- ment was for a period of one year but was renewed for an additional two years and four months. James B. Jensen, Jr., a United States citizen with residence in California and the Philippines, is the presi- dent of LPI and James B. Jensen & Co. (“Jensen, Inc.”), a California corporation located in San Francisco. The negotiations for the international distributorship agree- ment occurred both in Tucson, when Jensen visited Gates, and by telephone, correspondence, and telex from Tucson to Manila and San Francisco. The agreement provides that it “is an Arizona agreement and that it shall be governed by the laws of the State of Arizona of the United States of America in all matters, included but not limited to, validity, obligation, interpretation, construc- tion, performance and termination.” During the time the agreement was in effect, Jensen and Ricardo S. Tomacruz, the vice-president and general manager of LPI and a citizen and resident of the Philip- pines, made several trips to Tucson on behalf of LPI. The purposes of Jensen’s visits, which numbered at least seven between February 1978 and September 1981, in- 3a cluded arrangement of an aircraft sale, meetings with Gates employees, and attendance at Gates’ international distributor conference and the delivery of several air- planes. LPI also entered into several airplane purchase agreements with Gates in Tucson. Each agreement con- tained a choice of law provision specifying Arizona and a choice of forum provision that the “courts of Arizona shall have exclusive jurisdiction to hear and determine all claims, disputes, actions, or suits which may arise hereunder.” In addition, LPI and Jensen, Inc. purchased over $200,000 in spare parts from Gates. In 1981, Gates did not renew the international dis- tributorship agreement with LPI. On February 3, 1982, Gates filed a four-count complaint in an Arizona state court against Jensen, Tomacruz, LPI, Jensen, Inc., and Hamix International Ltd., a Hong Kong corporation (“defendants”). Count one of the complaint alleges un- authorized use of Gates’ tradenames and trademarks. Count two alleges abuse of process arising out of the seizure by Philippine authorities of a Gates’ aircraft and the jailing of its pilot. Count three alleges interference with contractual relations between Gates and customers in the Philippines. Count four alleges a conspiracy to make unauthorized use of Gates’ tradename and trade- mark. The action was removed to a federal district court for diversity of citizenship. On September 23, 1982, the United States District Court for the District of Arizona dismissed counts two and three for lack of personal jurisdiction as to one of the defendants, Jensen, Inc. Gates Learjet Corp. v. Jen- sen, No. CIV 82-139 (D. Ariz. Sept. 23, 1982) (Gates Learjet I). After this partial dismissal, the defendants answered the complaint and filed a six-count counter- 4a claim. The counterclaim alleges improper termination of the distributorship agreement, unjust enrichment, in- terference with contractual-relations, and defamation. It added three parties to the litigation: B. S. Stillwell, Jane Doe Stillwell, and Stillwell Aviation Australia Party, Ltd. On May 31, 1983, the district court clarified its earlier dismissal order and dismissed counts two and three as to all of the defendants. On October 5, 1983, after 18 months of trial prepara- tion, the defendants challenged the convenience of the forum. The defendants allege that two civil actions pend- ing in Philippine courts make the same allegations as the action brought by Gates in Arizona. On November 1, 1983, the district court conditionally dismissed counts one and four of the complaint under the doctrine of forum non conveniens. The court dismissed Gates’ com- plaint on the following conditions: 1) The Philippine courts accept jurisdiction; 2) the defendants submit to that jurisdiction; 3) the defendants make their employees available for process and as witnesses; 4) the defendants waive any newly arisen statute of limitations defenses; 5) the defendants recognize any Philippine court judg- ment; and 6) all discovery and products may be used in any action in the Philippines, subject to objections which could be made in this court. Gates Leaijet Corp. v. Jen- sen, No. CIV 82-189, slip op. at 11 (D. Ariz. Nov. 1, 1983) (Gates Learjet II). Il. DISCUSSION A. Personal Jurisdiction The district court dismissed counts two and three of Gates’ complaint for lack of personal jurisdiction. As the party seeking to invoke the jurisdiction of the court, 5a Gates has the burden of establishing personal jurisdic- tion. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).' Arizona's long-arm statute establishes personal jurisdiction over over nonresidents to the maximum extent permitted by due process. Houghton v. Piper Aircraft Corp., 112 Ariz. 365, 542 P.2d 24, 26 (1975). Due process requires the defendants to have certain minimum contacts with the forum so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Colonial Leasing Co. v. Pugh Brothers Garage, 'Gates contends that the defendants waived any objection to personal jurisdiction when they invoked the jurisdiction of this court by asking for affirmative relief in a permissive counter- claim. The courts are divided on the issue of whether the asser- tion of a permissive counterclaim should constitute a waiver of a jurisdictional defense. Compare North Branch Products, Inc. v. Fisher, 284 F.2d 611, 615 (D.C. Cir. 1960) (waiver) and Merz v. Hemmerle, 90 F.R.D. 566, 569 (E.D.N.Y. 1981) (waiver) with Neifeld wv. Steinberg, 488 F.2d 423, 427 (3d Cir. 1971) (no waiver) and Lomanco, Inc. v. Missouri Pacific Railroad Co., 566 F.Supp. 846, 851 (E.D. Ark. 1983) (no waiver). See gen- erally Annot., 17 A.L.R. Fed. 390 (1973). Although this court has held that the defendant’s assertion of a compulsory counter- claim “does not constitute a waiver of any jurisdictional defense he previously or concurrently asserts,” Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241, 244 (9th Cir. 1967), we have not decided whether the assertion of a permissive counterclaim constitutes a waiver. As to defendant Jensen, Inc., this case is easily resolved because Jensen, Inc. brought a motion to dismiss for lack of personal jurisdiction prior to the filing of the answer and counter- claim. See Neifeld v. Steinberg, 438 F.2d at 428 n.10 (clearly no waiver when jurisdictional defenses raised by motion prior to filing of answer). 6a 735 F.2d 380, 383 (9th Cir. 1984). To satisfy this due process requirement, Gates may prove “general jurisdic- tion” or “limited jurisdiction.” 1. GENERAL JURISDICTION A sufficient relationship between the defendants and Arizona exists to support general jurisdiction if Gates can demonstrate that the defendants’ activities within Arizona are “substantial” or “continuous and systematic.” See Data Disc, Inc. v. Systems Technology Assvciates, Inc., 557 F.2d at 1287. We review the district court's holding that Jensen “does not transact business within Arizona on a continuous or systematic basis, and does not provide the kind of contacts that wouid sustain exer- cise of general jurisdiction.” Gates Learjet I, slip op. at 7. The other defendants, however, did not raise the jurisdic- tional defense until they filed their answer and counterclaim. Nevertheless, we hold that the filing of a permissive counter- claim does not constitute a waiver of a personal jurisdiction de- fense asserted in the same pleading. Rule 12(b) of the Federal Rules of Civil Procedure implicitly authorizes a defendant to join a jurisdictional defense with a counterclaim without waiv- ing this defense. The rule permits a defendant to raise jurisdic- tional defenses by motion or by answer. If we were to find a waiver when a defendauts files a permissive counterclaim in the same pleading in which he asserts jurisdictional defenses, the —purposes behind Rule 12(b) — to avoid the delay caused by successive motions and pleadings and to reverse the prior prac- tices of asserting jurisdictional defenses by “special appearances” — would be thwarted. See Neifeld v. Steinberg, 438 F.2d at 429. Moreover, courts have noted that when the rule makers wanted to attach “waiver” consequences in certain situations, they did so explicitly. See Id. at 428 & n.11; Lomanco, Inc. v. Missouri Pacific Railroad Co., 566 F.Supp. at 850. Pee Sh eee Len ttl Cnt sie ae nS det et Ta Gates cites five activities to prove that defendants’ contacts with Arizona were “continuous and systematic” and “substantial”: 1) Jensen solicited the distributorship agreement in Arizona; 2) the defendants visited Tucson a number of times; 3) the airplane purchase agreements between Gates and Jensen contained an Arizona choice of law and forum provision; 4) the defendants purchased spare parts from Gates in Tucson; and 5) the defendants sent many letters and telexes and made numerous tele- phone calls to Tucson. We must decide whether these contacts constitute sufficient activity in Arizona to conclude that the defend- ants “may in fact be said already to be ‘present’ there.” Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 413 (9th Cir. 1977). Moreover, we must focus upon the “economic reality” of the defendants’ activities rather than a mechanical checklist. See Thos. P. Gonzales Corp. v. Consejo Nacional, 614 F.2d 1247, 1254 (9th Cir. 1980) (quoting Foster v. Mooney Aircraft Corp., 68 Cal. App.3d 887, 137 Cal. Rptr. 694, 697 (1977) ). We conclude that the “economic reality” here is that defendants’ activities in Arizona were not “continuous and systematic’ or “substantial”. Jensen’s solicitation of the distributorship agreement in Arizona and the defend- ants’ visits to Tucson do not constitute “conducting busi- ness’ in Arizona. See Rocke v. Canadian Automobile Sport Club, 660 F.2d 895, 399 (9th Cir. 1981). Making telephone calls and sending telexes and letters to Tucson are not activities which support a finding of general jurisdiction. See Thos. P. Gonzales Corp. v. Consejo Na- cional, 614 F.2d at 1254. Furthermore, the choice of forum provision in the airplane purchase agreement ap- plies only to disputes arising out of those agreements. 8a Significantly, the defendants did not establish a regular place of business in Arizona. See Rocke v. Canadian Automobile Sport Club, 660 F.2d at 399. These contacts in their totality do not demonstraie sufficient activity in Arizona to support general jurisdiction. Defendants’ ac- tivities in Arizona were more occasional than continu- ous, and more infrequent than systematic. 2. LIMITED JURISDICTION If a defendant's activities are not so pervasive to subject them to general jurisdiction, this court makes the following evaluation in determining whether there is limited jurisdiction: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposely avails him- self of the privilege of conducting activities in the —_ thereby invoking the benefits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant's forum-related activities. (3) Exercise of jurisdiction must be reasonable. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977). Gates clearly satisfies the first prong of this test. Not only did Jensen solicit the distributorship agreement in Arizona, but also the agreement specifically provides that Arizona law governs it. The distributorship agree- ment,’ therefore, directly ‘nvokes the benefits and protec- tions of Arizona laws. See O'Hare International Bank v. Hampton, 437 F.2d 1178, 1177 (7th Cis. 1971); Alchemie 9a International, Inc. v. Metal World, Inc., 523 F.Supp. 1039, 1054 (D.N.J. 1981). Given these circumstances, Jensen should have reasonably anticipated “being haled into court” in Arizona. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Prong two of the Data Disc inquiry requires that each claim “arises out of or results from” the defendants’ forum related activity. 557 F.2d at 1287. The district court had the most trouble with this part of the test, stating: The claims of counts two and three, sounding in tort law, cannot be said to arise out of the distributor- ship agreement. These claims result from the con- duct of defendant outside the state, and are too attenuated a contact to justify exercise of personal jurisdiction. Gates Learjet I, slip op. at 10. After examining the record, we conclude that the district court erred in finding that the claims in counts two and three are “too attenuated a contact” to justify the exercise of personal jurisdiction. Count two of Gates’ complaint alleges that the de- fendants filed two civil actions and one criminal com- plaint in the Philippines which caused the seizure of one of Gates’ Learjets and the arrest of one of its em- ployees. Count two alleges further that these actions were meant to harass, intimidate and threaten Gates and constitute an abuse of process. At first blush, this count may appear to be unrelated to the distributorship agree- ment. An examination of the complaint that the defend- ants filed in the Philippines on December 1, 1981, how- ever, dispels any doubt that this count “arises out of” the distributorship agreement. 10a The first cause of action in the Philippines complaint alleges that Gates’ nonrenewal of the distributorship agreement with the defendants was “clearly contrary to law, morals, good customs, public policy and public order.” The second cause of action alleges “moral” and reputation damages for Gates’ bad faith in refusing to renew the distributorship agreement. The third cause of action alleges wanton and fraudulent behavior in refus- ing to negotiate the renewal of the distributorship agree- ment. Thus, count two of Gates’ complaint arose out of the distributorship agreement because its termination induced defendants’ alleged harassment and intimida- tion of Gates. Count two was not too attenuated from the distributorship agreement to support a finding of limited jurisdiction. We similarly conclude that count three of Gates’ complaint satisfies the second prong of the Data Disc test. Count three alleges that the defendants interfered with Gates’ contractual relations with its customers in the Philippines. This count also arises out of the distribu- torship .yreement because its factual basis concerns whether Jensen improperly used Gates’ tradenames con- trary to the terms of the distributorship agreement.’ ?Gates cites cases that interpret an Arizona attorney's fee =" statute and hold that tort claims arise ou of a contract if they could not exist “but for” the contract. See, e.g., Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 544, 647 P.2d 1127, 1141 (1982), cert. denied, 459 U.S. 1070 (1982). Although these cases interpret the “arises out of” language in a manner that sup- ports Gates’ construction, Gates never demonstrates why this court, in applying a constitutional due process test, should adopt an Arizona court's interpretation of an irrelevant state statute. A lla The third and final prong of the Data Disc inquiry requires a court's exercise of jurisdiction to be reasonable. 557 F.2d at 1287. This court has identified seven factors as pertinent to the reasonableness inquiry: (A) the extent of the defendant's purposeful inter- jection into the forum state; (B) the burden of de- fending in the forum state; (C) the extent of the conflict with the sovereignty of the defendant's state; (D) the forum state's interest in adjudicating the dispute; (E) the most efficient judicial resolu- tion of the controversy; (F) the importance of the forum to the laintiffs interest in convenient and effective relief; and (G) the existence of an alterna- tive forum. Rocke v. Canadian Automobile Sport Club, 660 F.2d 395, 399 (9th Cir. 1981); see Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981). “These factors are not mandatory tests, each of which plaintiff must pass in order for a court properly to assume jurisdiction. Instead, the factors illuminate the considerations of fairness and due process set forth in International Shoe, 326 U.S. at 310.” Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 F.2d 1355, 1359 (9th Cir. 1983). The application of these factors to this case con- vinces us that it would be reasonable to subject the de- fendants to the jurisdiction of the Arizona court. We con- sider each of the factors in turn. Although not extensive enough to support general jurisdiction, the contacts of LPI, Jensen, and Tomacruz with Arizona are sufficient to demonstrate a purposeful interjection into the forum state. Jensen solicited an inter- 12a national distributorship agreement in Tucson, which con- tained a choice of law provision specifying Arizona. Both Jensen and Tomacruz made several visits to the Gates’ facilities and even accepted delivery of airplanes in Tuc- son. Moreover, these airplane purchase agreements con- tained choice of law and forum provisions, both of which specified Arizona. Thus, the terms of important contracts between Gates and the defendants demonstrate that the defendants had notice that they might be brought into a court in Arizona. The burden on the defendants of defending in Ari- zona, as opposed to the Philippines, is potentially sig- nificant. Litigating abroad imposes significant incon- veniences upon the party appearing in a foreign country. Olsen By Sheldon v. Mexico, 729 F.2d 641, 650 (9th Cir. 1984). We nevertheless conclude that the burden on the defendants would not be substantial here, primarily be- cause the defendants must litigate in Arizona anyway. The district court found personal jurisdiction as to counts one and four. The extra burden of defending counts two and three in Arizona, particularly in light of their con- nection to counts one and four, would be minimal. The reasonableness of jurisdiction depends also in part upon the seriousness of the potential affront to the sovereignty of the defendants’ state. A foreign nation presents a higher sovereignty barrier than that between two states within our union. Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d at 1272. Two of the three defendants named in counts two and three are residents of the Philippines. The government of the Philippines clearly has an interest in resolving disputes that involve its citizens. Nevertheless, we note that this factor is not dispositive because, if given controlling 18a weight, it would always prevent suit against a foreign national in a United States Court. We examine next Arizona's interest in adjudicating this dispute. Arizona has a strong interest in ensuring that its citizens are fully compensated for their injuries, in part to protect the state's economic resources from unnecessary expenditures. See Olsen By Sheldon v. Mex- ico, 729 F.2d at 651. At the current stage of the litigation, Arizona would appear to be the more efficient forum to resolve this dis- pute. Gates alleges, and defendants do not dispute, that discovery is completed and “this matter could be tried in a matter of weeks.” In addition, although parts of counts two and three may require the application of Philippine law, the proof of both counts may also involve the application of Arizona law. For example, Gates may attempt to prove the unreasonableness of defendants’ alleged actions in count two, in part, by demonstrating that Gates properly terminated the distributorship agree- ment, which proof would require the application of Ari- zona law. The district court in Arizona is the more effici- ent forum to resolve such interpretations of Arizona law. See Hedrick v. Daiko Shoji Co., Ltd., Osaka, 715 F.2d at 1859; Raffaele v. Compagnie General Maritime, 707 F.2d 395, 399 (9th Cir. 1983); Insurance Co. of North Amer- ica v. Marina Salina Cruz, 649 F.2d at 1273.° 3 The Philippines, of course, may be the more efficient forum to apply possible Philippine law questions. Nevertheless, we con- clude that Arizona is the more efficient forum because the action is almost ready for trial in Arizona. l4a An Arizona court certainly provides Gates with the most convenient forum for seeking relief. Unlike the individual plaintiff in Raffaele v. Compagnie Generale Maritime, 707 F.2d at 399, both parties here invoive corporate entities apparently with sufficient resources to defend in either country. We therefore give some, but not significant, weight to this factor. The final factor we consider is the availability of an alternative forum. Gates alleges that it may not receive a fair trial in the Philippines because of the “well pub- licized violent upheavals” there. We note that the “appel- lants must carry the burden of proving the unavailability of an alternative forum.” Olsen By Sheldon v. Mexico, 729 F.2d at 651. We cannot say that Gates has satisfied this burden. In light of the other factors, however, this ‘factor is not dispositive. After considering all the relevant factors, we con- clude that, on balance, the exercise of limited personal jurisdiction over the defendants by a federal district court in Arizona is reasonable. The defendants’ numerous visits to Tucson and Jensen’s solicitation of the distributorship agreement there demonstrate a purposeful interjection into the state of Arizona. Moreover, defending counts two and three would not burden defendants significantly because they must litigate counts one and four in Arizona anyway. We place some, but not substantial, weight on the convenience to Gates of litigating this dispute in Ari- zona. Finally, Arizona has an interest in adjucicating this dispute and, at this stage of the litigation, it is the more efficient forum. In weighing these factors, we are not convinced that adjudication of this dispute in Arizona will affront the 15a sovereignty of the Philippines. Although the availability of an alternative forum supports the defendants’ positiou, the other factors weigh more strongly in Gates’ favor. The district court in its order did not weigh these factors, nor did it examine whether the exercise of personal jurisdic- tion would be reasonable. Under the Data Disc three- prong inquiry, therefore, the district court erred in dis- missing counts two and three for lack of personal juris- diction. B. Forum Non Conveniens On November 1, 1983, the district court condition- ally dismissed Gates’ complaint under the doctrine of forum non conveniens. Because the district court had dismissed counts two and three for lack of personal juris- diction one year earlier, this dismissal pertained only to counts one and four, which allege unauthorized use of Gates tradenames and trademarks. The dismissal would require Gates to pursue relief in the Philippine courts. Whether an action may be dismissed for forum non conveniens when jurisdiction is otherwise properly in- voked is governed by the factors outlined in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). The Court divided these factors into “private interest” and “public interest” factors, each of which must be weighed by the district court. As this court has noted: The private interest factors include “the relative ease of access to sources of proof; availability of com- pulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” ... The public interest factors in- 16a clude the administrative difficulties flowing from court congestion; the local interest in having local- ized controversies resolved at home; the interest in having the trial of a diversity case in a forum that is familiar with the law that must govern the action; the avoidance of unnecessary problems in conflicts of law, or in application of foreign law, and the un- fairness of burdening citizens in an unrelated forum with jury duty. Cheng v. Boeing Co., 708 F.2d 1406, 1409-10 (9th Cir. 1983) (citations omitted), cert. denied, 104 S.Ct. 549 (1983). If a district court properly analyzes and considers all relevant factors and its balancing of these factors is rea- sonable, its forum non conveniens dismissal “may be re- versed only when there has been a clear abuse of discre- tion.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). A district court, therefore, abuses its discretion when it fails to balance the relevant factors. La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir. 1983). _ “Emphasis on the district court’s discretion . .. must not overshadow the central principle of the Gilbert doctrine that ‘unless the balance is strongly in favor of the de- fendant, the plaintiff's choice of forum should rarely be disturbed.’ ” Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981) (quoting Gulf Oil Co. v. Gilbert, 330 U.S. at 508). We conclude that the district court did not balance the important relevant factors. The balance of the public and private interest factors is not strongly in favor of the defendants. We therefore hold that the district court’s dismissal of counts one and four for forum non con- venier . was an abuse of discretion. 17a 1. PRIVATE INTEREST FACTORS The district court failed to examine at least two im- portant and relevant private interest factors.’ First, the district court did not recognize or consider in its balanc- ing that Gates is a United States citizen and a resident of Arizona. A United States citizen has no absolute right to sue in a United States court. Mizokami Brothers of Arizona, Inc. v. Baychem Corp., 556 F.2d 975, 977 (9th Cir. 1977) (per curiam), cert. denied, 434 U.S. 1085 (1978). The Supreme Court, however, as observed “that a plaintiff's choice of forum is entitled to greater defer- ence when the plaintiff has chosen the home forum.” Piper Aircraft Co. v. Reyno, 454 U.S. at 255; see Koster v. Lumbermens Mutual Co., 330 U.S. 518, 524 (1947); Paper Operations Consultants International, Ltd. v. SS Hong Kong Amber, 518 F.2d 667, 672 (9th Cir. 1975). Greater deference is due because “a real showing of con- venience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.” Piper Aircraft Co. v. Reyno, 454 U:S. at 255 n.23 (quoting Koster v. Lumbermens Mutual Co., 830 U.S. at 524). 4 The district court correctly began its analysis with a determi- nation of whether there exists an alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. at 254 n.22; Cheng v. Boeing Co., 708 F.2d at 1410; Pain v. United Technologies Corp., 687 F.2d 775, 784 (D.C. Cir. 1980), cert. denied, 454 U.S. 1128 (1981). The court noted that a defendant’s amenability to process in the other jurisdiction ordinarily satisfies this requirement. See Gulf Oil Co. v. Gilbert, 330 U.S. at 506-07. We do not overturn the district court’s finding of an alternative forum. That an altern- ative forum exists, however, is not dispositive in the balancing required in a forum non conveniens analysis. 18a The second relevant private interest factor the dis- trict court failed to examine is that the parties were ready for trial when it dismissed the complaint for forum non conveniens. The discovery deadline had passed; all docu- ments needed for trial had been exchanged and/or iden- tified; and all necessary trial documents were located in Tucson, Arizona. The central purpose of any forum non conveniens inquiry is to ensure that the trial is conveni- ent. Piper Aircraft Co. v. Reyno, 454 U.S. at 256; La Seguridad v. Transytur Line, 707 F.2d at 1307. That trial preparation had progressed nearly to the point of trial certainly was a relevant factor when the district court considered whether trial of the case in Arizona would have been more “easy, expeditious and inexpensive” than trial in the Philippines. See Gulf Oil Corp. v. Gilbert, 330 U.S. at 508. Although no single factor is dispositive, we conclude that the district court’s failure to weigh these private interest factors was an abuse of discretion. We also observe that the private interest factors mentioned by the district court do not strongly support the defendants’ position on forum non conveniens. The district court noted that “the vast majority of the wit- nesses reside in the Philippines. ...” Gates Learjet II, slip op. at 9. The defendants, however, admit that the district court was not absolutely correct. In fact, 23 of the 44 witnesses, whom the parties designated in response to interrogatories, reside in the Philippines, which is hardly a “vast majority.” Furthermore, the district court improperly focused on the number of witnesses in each location. Instead, the court should have examined the materiality and impor- tance of the anticipated witnesses testimony and then determined their accessibility and convenience to the en ee 19a forum. See La Seguridad v. Transytur Line, 707 F.2d at 1308-09; Thomson & McKinnon v. Minyard, 291 F.Supp. 578, 576 (S.D.N.Y. 1968). We also note that a district court should keep in mind that “the increased speed and ease of travel and communication . .. makes, especially when a key issue is the location of witnesses, no forum ‘as inconvenient [today] as it was in 1947, ” when the Supreme Court decided Gilbert. Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir. 1981). We are not convinced that the court here prop- erly considered and weighed this private interest factor. We therefore cannot give much deference to the district court's consideration of it. 2. PUBLIC INTEREST FACTORS In its consideration of public interest factors, the district court concluced that the Philippines “has a sub- stantial interest in the outcome of the litigation.” It rea- soned that “most of the operating facts occurred in the Philippines,” and that “[t]he controversies will require the application of Arizona law and Philippine law.” Gates Learjet II, slip op. at 10. Public interest factors properly considered include “the local interest in having localized controversies resolved at home,” and “the interest in hav- °In its discussion of private interest factors, the district court also noted that “almost all of the acts alleged in the complaints and counterclaims occurred in the Philippines.” This observa- tion, however, seems to pertain to the Philippines’ interest in the action, which is a public interest factor. If the district court was instead referring to the convenience of obtaining certain evidence, it failed to explain what evidence was unavailable. As discussed above, most trial materials were located in Arizona at the time the district court dismissed counts one and four for forum non conveniens. 20a ing the trial of a diversity case in a forum that is familiar with the law that must govern the action.” Cheng v. Boe- ing Co., 708 F.2d at 1410. We nevertheless conclude that th: district court's consideration of these public interest factors rested on a mistaken assumption about the applicable law and im- properly ignored the advantages of an Arizona forum for the trial. In noting that both Philippine and Arizona law applied to this matter, the district court apparently con- considered all four counts of the Gates complaint. The defendants motion to dismiss for forum non conveniens, however, could pertain only to counts one and four be- cause the court had already dismissed counts two and three for lack of personal jurisdiction. Counts one and four allege unauthorized use and a conspiracy to make unauthorized use of Gates’ tradename and trademark. These counts involve an interpretation of the international distributorship agreement entered into between Gates and LPI. Under the heading, “Post- Termination Actions,’ the distributorship agreement provides: The Distributor shall immediately discontinue the use of any trade names or trademarks referred to in Article III above and shall make no further use of the same nor any other name, title, expression or mark so nearly resembling such trade names or trademarks as to be deceptive in nature. The distributorship agreement also specifically provides that it shall be governed by Arizona law. Thus, counts one and four apparently are contract actions that require the application of Arizona law, not Philippine law.‘ ¢ Defendants implicity admit this point, conceding that Arizona law would apply to a contract action. ———————————e Qla In addition to making a mistaken assumption about the applicable law, the district court failed to weigh Ari- zona’s interests in having the controversy “resolved at home.” Arizona has a significant interest in interpreting its own laws. See Cheng v. Boeing Co., 708 F.2d at 1411. Arizona also has an interest in protecting its companies from trademark infringement abroad to preserve the state's economic vitality. Although the situs of the alleged trademark and tradename infringement was the Philip- pines, it appears that Philippine law is not applicable. We therefore conclude that these public interest factors sheuld not weigh heavily in defendants’ favor. A proper understanding of the applicable law and the relative interests, in fact, suggests that Arizona has the more sub- stantial interest in this litigation. The district court particularly emphasized one pub- lic interest factor: the docket congestion of its court. It stated: Counsel have indicated that there are hundreds, if not thousands, of exhibits involved. There will be many witnesses testifying for both sides. The case will take weeks to try. The Tucson division of the District of Arizona is presently operating with two district judges. Normally there are three judges in the division. The two judges are handling all of the criminal calendar. Outside judges have been as- signed to handle part of the civil calendar and it is contemplated that more help will be necessary in the future. Gates Learjet II, slip op. at 10. This factor also should not weigh heavily in defend- ants favor. The real issue is not whether a dismissal will reduce a court’s congestion but whether a trial may be 22a speedier in another court because of its less crowded docket. See Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974) (en banc); 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3854 at 289-91 (1976); see also Foster v. Litton Industries, Inc., 431 F.Supp. 86, 88 (S.D.N.Y. 1977 (relative docket condi- tions accorded some, but not decisive, weight in transfer motions ). The district court here observed only that its dockets was congested; it did not determine whether a trial would be speedier in the Philippines. Even if it were, however, it is unfair for a court te subject a United States corporation to the courts of another country merely because plaintiff's home country courts are congested. The forum non conveniens doctrine should not be used as a solution to court congestion; other remedies, such as placing reasonable limitations on the amount of time each side may have to present evidence, are more appropriate. We hold that the district court failed to consider relevant private and public interest factors and miscon- - strued others. The district court therefore abused its discretion. On balance, we conclude that the relevant private and public interest factors support the district court's retention of jurisdiction and the dismissal of de- fendants forum non conveniens motion. iil. CONCLUSION Gates cannot demonstrate that the defendants had sufficient activity in Arizona to establish general juris- diction. Under the Data Disc three-prong inquiry into limited jurisdiction, however, we hold that the district court erred in dismissing counts two and three for lack of personal jurisdiction. As to the district court’s dismissal 23a of counts one and four for forum non conveniens, we find an abuse of discretion. The district court’s orders are therefore REVERSED AND THE CASE IS REMANDED. 24a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA GATES LEARJET CORPORATION and GATES LEARJET EXPORT CORPORATION, Plaintiffs, VS. NO. CIV 82-139- JAMES B. JENSEN, JR.,; TUC-ACM RESPONSE TO DEFENDANT LEARJET PHILIPPINES, JAMES B. INC., a corporation; JENSEN & CO., JAMES B. JENSEN & CO., INC INC’S MOTION TO DISMISS a corporation, and HAMIX INTERNATIONAL LTD., a corporation, ) ) ) ) ) 7 RICARDO S. TOMACRUZ; ) ) ) ») ) ) ) ) Defendants. Plaintiffs, pursuant to Rule 12 of the Federal Rules of Civil Procedure, hereby respond to defendant James B. Jensen & Co., Inc.’s Motion to Dismiss. This Response is based on the attached Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Defendant James B. Jensen & Co., Inc. (herein- after “Jensen, Inc.”) objects to an Arizona Court’s exer- cise of jurisdiction over it. In doing so, Jensen, Inc. is indulging in a corporate shell game in an attempt to confuse the Court and avoid proper exercise of its juris- diction. 25a os An examination of James B. Jensen's Answers to Interrogation, his Affidavit, and the Affidavit of Larry McDonough, attached hereto as Exhibit L, show that Mr. Jensen made numerous trips to Tucson, Arizona for various reasons, including the negotiation of the contract which established the relationship between the parties to this lawsuit. Mr. Jensen claims that all these visits were on behalf of Learjet Philippines, Inc., rather than Jensen, Inc. It can be safely assumed that if service had been obtained upon Learjet Philippines, Inc., he would be claiming that all the visits were on behalf of Jensen, Inc., a claim which would be sup- ported by the evidence. The spuriousness of Mr. Jensen’s claim that the early visits were on behalf of an entity other than Jensen, Inc. is made obvious by the recogni- tion that Learjet Philippines did not even exist at the time of the early visits. Furthermore, all correspondence between the Parties was to and from James B. Jensen, as President of Jensen, Inc. See correspondence attached hereto as Exhibits A through F. Many of these letters refer to trips made by Jensen to Tucson and regard dis- cussions which occurred at that time. Finally, Jensen maintains that Learjet Philippines, Inc. and Jensen, Inc. are separate and distinct companies and that the latter had no contact with Tucson. How- ever, an examination of correspondence from Learjet Philippines, Inc., shows that James B. Jensen, Inc. is the mailing address of Learjet Philippines, Inc. See Exhibit H attached hereto. Mr. jensen, as President of Learjet Philippines, Inc., refers to James B. Jensen & Co., Inc. as “our San Francisco office” and “our U.S. Affiliate company . See Exhibit I attached hereto. A later letter from Mr. Jensen, as President of Learjet Philippines, Inc., 26a again refers to James B. Jensen & Co., Inc. as “our San Francisco office” and asks that Learjet Philippines’ mail he sent there. See Exhibit J attached hereto. Finally, Mr. Jensen, as President of Learjet Philippines, Inc., refers to James B. Jensen & Co., Inc. as its “U.S. purchas- ing arm’. See Exhibit K attached hereto. Evidently, the filing of this lawsuit has made these two corporate entities suddenly separate and distinct, at least in the mind of Mr. Jensen. It is readily apparent, however, from examination of the attached documents that: A. Mr. Jensen, on behalf of Jensen, Inc., trans- acted business in the State of Arizona; and B. That Mr. Jensen used Jensen, Inc. and Learjet Philippines, Inc. interchangeably with total disregard of separate corporate identities. Therefore, James B. Jensen, Jr., President of James ‘-B. Jensen & Co., Inc. has been in Arizona on numerous occasions negotiating contracts with plaintiffs, attend- ing distributor's conferences put on by plaintiffs, accept- ing delivery of merchandise from the plaintiffs in per- formance of contracts, etc. See Affidavits of Lawrence McDonough and James B. Jensen, James B. Jensen's Answers to Interrogatories and correspondence attached hereto. The agreement which underlies the dispute out of which this action arose was substantially negotiated in Tucson by Mr. Jensen. See contract attached as Exhibit A to the Complaint. Indeed, Mr. Jensen, on behalf of Jensen, Inc., came to Tucson and initiated the relation- ship with plaintiffs. See letters attached hereto as Ex- hibits A through G. Such solicitation of a contract or 27a transaction establishes that a party “purposely availed itself of the privilege of conducting activities” within a state. Hanson v. Denckla, 376 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L.Ed. 1283 (1958). See also Empire Abra- sive Equipment Corp. v. H. H. Watson, Inc., 567 F.2d 554, 559 (3rd Cir. 1977); Bernard Brothers, Inc. v. Pride Manufacturing, Inc., 427 F.2d 297, 391 n.9 (3rd Cir. 1970). It should also be noted that Article XI in the afore- mentioned Contract, which is entitled Applicable Law, states “It is expressly agreed and understood that this agreement is an Arizona agreement and that it shall be governed by the laws of the State of Arizona of the United States of America in all matters, including, but not limited to, validity, obligation, interpretation, con- struction, performance and termination.” (emphasis added ) It is well settled that such choice of law provi- sions in a contract militate in favor of jurisdiction by the chosen state. See Southwest Offset, Inc. v. Hudco Pub- lishing Company, 622 F.2d 149, 152 (5th Cir. 1980) and Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 498 N.27 (5th Cir. 1974). See Also O'Hara International Bank v. Hampton, 437 F.2d 1173, 1177 (7th Cir. 1971) which held: “The fact that the guarantee was to be construed according to Illinois law . . . clearly demonstrates that the defendants ‘invoked the benefits and pro- tection of the state.’ ” Similarly, the Court in Alchemie International, Inc. v. Metalworld, Inc., 523 F.Supp. 1039 (D.N.J. 1981) found such a choice of law provision to be strong evidence of the existence of jurisdiction. The Court there stated: 28a “I judge Metalworld was on such notice here when it solicited a contract of this size, with an explicit New Jersey choice of law provision from a known resident of the state of New Jersey. If it then wished to ensure that it would not be exposed to litigation in New Jersey, the choice of forum provision could have been negotiated; absent such provision, Metal- world should reasonably have antitipated being na into court in the state.” Id. at 1054 (D.N.J. 1981). Jurisdiction was upheld in that case which involved a defendant with far less contact to the forum than de- fendant Jensen, Inc. has with Arizona. CONCLUSION It is clear from an examination of the record that jurisdiction over defendant Jensen, Inc. can properly be exercised in the State of Arizona. Mr. Jensen, as Presi- dent of Jensen, Inc. came to Arizona and negotiated contracts and engaged in other business activities. After Learjet Philippines was incorporated, Jensen, Inc. be- came a U.S. Affiliate and San Francisco office and con- tinued with its contact with plaintiffs here in Tucson. It should be pointed out that in a Motion to Dis- miss for lack of jurisdiction, the Plaintiff needs only a prima facie showing of jurisdiction through its affidavits and supporting material. Such a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion. Visual Sci- ences, Inc. v. Integrated Communications, Inc., 600 F.2d 56 (Second Cir. 1981); Data Disc, Inc. v. Systems Tech- nology Associates, 557 F.2d 1280, 1285 (9th Cir. 1977); United States v. Montreal Trust Company, 358 F.2d 289, 245 (Second Cir. 1966). This has clearly been done. Ac- 29a cordingly, it is respectfully requested defendant's Motion to Dismiss For Lack of Jurisdiction be denied. RESPECTFULLY SUBMITTED this 30th day of July, 1982. BILBY, SHOENHAIR, WARNOCK & DOLPH, P.C. By WILLIAM H. TINNEY P. O. Box 871 Tucson, Arizona 85702 Attorneys for Plaintiffs Copy of the foregoing mailed this 2nd day of August, 1982, to: Gary F. Howard, Esq. MOLLOY, JONES, DONAHUE, TRACHTA, CHILDERS & MALLAMO, P.C. 2200 Arizona Bank Plaza 33 North Stone Avenue Post Office Box 2268 Tucson, Arizona 85702 Attorneys for Defendants 30a EXHIBIT A TELEX RCA TELEPHONE SAN FRANCISCO 278-259 (415) 956-2055 MANILA 722-2097 James B. Jensen & Co., Inc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 March 1, 1978 Gates Learjet Export Corporation P. O. Box 11186 Tucson, Arizona 85734 Attention: Mr. Finn Hedlund Vice President Marketing Dear Mr. Hedlund: It was a pleasure meeting you early this week, and I wish to thank you for having given me the opportunity to express my desire to actively sell Gates Learjets in the Philippines. As I mentioned, we have been active in business between the United States and the Philippines for the past 33 years, where we have specialized in supplying industrial and plant equipment and spare parts involving the sugar, cement, logging, licht & power, and fertilizer industries, as well as various other industries. Because of my personal interest in aviation, we be- gan an active participation in this industry approximately four years ago, and within this time, we have developed a capability for selling aircraft and aircraft spares in the Philippine market. A particularly good relati hip I Sla have had within this period has been with Mr. Landis Carr and AiResearch Aviation, with whose cooperative effort we have sold three Merlins, one F-27F Executive, and one Turbo Commander aircraft. We have also sold various other aircraft, including a new Cessna Golden Eagle, and now, one of your Gates Learjet products. We have a Philippine associate company, Aviation Specialist, Inc., which I personally own, which is com- pletely staffed and operates localling in the Philippines, dealing exclusively in aircraft sales and aircraft parts. We have been successful in developing aircraft spares sales also, as a result of presently being the only operation in the Philippines with offices at the airport hangar area, as well as having offices in San Francisco with personnel knowledgeable about spares sources, thereby permitting us to service AOG requirements better and faster than aryone else in the Philippines. We will have access to Learjet 36A, Serial No. 36, as well as the crew and mechanics of that aircraft who are considered as the cream of the crop in the General Aviation field in the Philippines. I also have on my staff as consultant, Capt. Ricardo Tomacruz, formerly a Vice President and Chief Pilot of the companies of General Hans Menzi. He has recently left those companies and is presently associated with me. Your Mr. James Bir knows Capt. Tomacruz and is familiar with his qualifi- cations and competence with the Gates Learjet aircraft. We are certain we can maximize sales of your air- craft in the Philippines, as we have strong personal con- tacts with the pilots’ groups as well as the heads of industry and government, who are the potential buyers of the aircraft. 32a Our present forecast is a sale of four Gates Learjet aircraft in a 24-month period. Furthermore, I have form- ulated plans related to the sale to the Philippine govern- ment, and the success of this program would have highly productive results. This potential sale is in addition to the four units I have forecast for sale to business and industry. We are most anixous to get underway with a sales program, needing only word from you that we can actively sell your products in the Philippine market. We thank you for your past cooperation, and we look forward to future dealings with your company. Yours very truly, James B. Jensen & Co., Inc. By JAMES JENSEN, JR. President 33a . EXHIBIT B Gates Learjet Export Corporation p.o. box 11186 tucson, arizona 85734 (602) 294-4422 telex 666408 6 March 1978 Ref.: L-820-03-78-376 Mr. James B. Jensen, Jr. President James B. Jensen & Co., Inc. 235 Montgomery Street, Suite 1626 San Francisco, California 94104 Dear Mr. Jensen: I want to take this opportunity to thank you for the val- uable help you gave us recently on the sale of Learjet 36A-36. It was a pleasure for all of us to have you here in Tucson last week, and to discuss with you how possibly our fu- ture business may be conducted in the Philippines. I have read, with interest, your description of your busi- nesses in the Philippines and California, and your ex- perience and involvement in various areas of the aviation industry. Your access to 36A-36, as well as to its pilots and mechanics, constitutes an important ingredient of a future Learjet distributorship. I agree with you that if we go after new business in a more constructive manner, and challenge Beechcraft _ domination in the Philippines, we can accomplish much more than has been accomplished in the past. 34a A decision relating to the appointment of a distributor in the Philippines will be made shortly. I promise to be in touch with you. Sincerely, FINN HEDLUND FIH/de ce: J. E. Bir S. W. Blankenship R. E. Cloughley J. M. Traisnel 35a EXHIBIT C TELEX RCA TELEPHONE SAN FRANCISCO 276-259 (415) 956-2055 MANILA 722-2087 James B. Jensen & Co., Inc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 March 20, 1978 Gates Learjet Export Corporation P.O. Box 11186 Tucson, Arizona 85734 Attention: Mr. Finn Hedlund Vice President Marketing Dear Mr. Hedlund: Regarding your request for a Philippine reference who could attest to our integrity and capability, I will request Mr. Roberto T. Villanueva, Chairman of the largest Philippine construction company, A.G.&P., At- lantic Gulf & Pacific Co. to send you a communication. He is also the chairman of PDCP, Private Development Corporation of the Philippines, a large development bank as well as of BISCOM, Binalbagan-Isabela Sugar Co., the largest sugar mill in the Far East. We have known and been associated with Mr. Villanueva for more than thirty years. Mr. Villanueva is a fine gentlemen of international stature who in his ‘ravels has no problems securing ap- pointments to meet with such people as David Rocke- feller at Chase Manhattan, Agnelli of Fiat, etc. In the 86a Philippines, he is well respected as an industrialist, banker, and economist. For your information, I sold his sugar mill BISCOM a new Cessna 421-B Golden Eagle in 1976. This aircraft is shared by his group of companies and with their ex- panding construction contracts in Saudi Arabia and the recent forming of their new company A.G.&P. Saudi, I have them as a candidate for a Learjet in 1979. Further- more their chief pilot was hired through my recommen- dation and enhances my position by having loyal sup- port from the owners as well as the pilot. I contacted Mr. Villanueva’s office today and un- derstand that he is on a short trip but expected to return sometime next week. He will send you a communication as soon as he returns. I am enclosing a brochure of A.G.&P. as well as a recent annual report. I can secure other references if necessary, such as ‘Mr. Emilio Abello, Chairman of Manila Electric Com- pany, the largest Philippine corporation in equity. He is also Chairman of P.C.I.B., Philippine Commercial and Industrial Bank, a very large Philippine private com- mercial bank. Your firm may also contact him directly. I have prepared my list of prospective Learjet clients and will provide you complete details when appropriate including when sales to them can be contemplated. I will furnish you details on their activities and provide you their annual report if available. In almost all cases I have personal contacts with their principal officers as well as their pilots. 37a We are ready for an all-out effort to sell and pro- mote Learjets in the Philippines and need only word from your company to proceed with my plans. Learjet 36-A S/N 36 will be arriving in Manila this Thursday and will be of great help in my promotions. We thank you for your past cooperation and we look forward to future business with your company. Yours very truly, JAMEs B. JENSEN & Co., INc. JAMES JENSEN, JR. President JyJRilja Encl. as stated 88a EXHIBIT D TELE¥Y RCA TELEPHONE SAN FRANCISCO 278-259 (415) 956-2055 MANILA 722-2097 James B. JENsEN & Co., INc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 May 4, 1978 Mr. Finn Hedlund Gates Learjet Export Corporation P.O. Box 11186 Tucson, Arizona 85734 Dear Mr. Hedlund: Enclosed please find International Distributor Agreement duly signed, prospect review as well as other data which you might find of interest. A spec sheet with prices was given to me by the chief pilot and head of the aviation department of Ayala Corporation. This relates to the Citation II which Heli- Orient has earmarked for their purchase. I have at- tempted to halt this transaction and have them consider a Learjet and I have the cooperation of the chief pilot as well as the corporate finance man but they also tell me that they are uncertain as to how deeply their presi- dent has made a verbal commitment. Apparently no ef- fort had been made by the former Learjet distributor and I am a bit late but doing my utmost to salvage the situation. This would normally have a fairly easy sale as the president of Ayala Corporation, Mr. Enrique Zobel de Ayala is a proficient pilot. 39a Re Marinduque Mining, you will find enclosed a newspaper clipping showing their poor corporate per- formance for the past two years. Although we know the chief pilot, we have not been able to contact him as lie is out of the country. An executive secretary has told us confidentially that management people have been avoid- ing meeting with the Cessna people although she men- tions that some deposit has been made. We will revert to this shortly but it seems that this company will be out of the picture related to purchasing an aircraft for a while. We are actively promoting the sale of Learjets and we expect to be able to show some accomplishments in the very near future. Sincerely, JIM JENSEN JJJR/lja Encl. 40a EXHIBIT E TELEX RCA TELEPHONE SAN FRANCISCO 278-259 (415) 956-2055 MANILA 722-2097 James B. JENSEN & Co., Inc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 May 19, 1978 Mr. Finn Hedlund Gates Learjet Export Corporation P.O. Box 11186 Tucson, Arizona 85734 Dear Mr. Hedlund: You will find enclosed a copy of list of corporations as well as chief executives or aviation department heads who we feel should be sent a copy of Contrails. We have sent a copy of this list to Mr. Dave Wodraska. Also enclosed is a copy of letter sent me by Ricardo Tomacruz regarding follow up on prospective Learjet customers. We will continue to explore how to discour- age Col. Zobel from continuing with taking delivery on the Citation II and hope that there might be a long delay in meeting deliveries which would enable him to back out from his commitment. To my knowledge, no money has yet changed hands. We will continue to provide you with up to date information and we hope that we will have news of a better nature in the very near future. Sincerely, JAMES JENSEN, JR. JJJR/lia P.S. I am returning the blue copy of the International Distrib- tor Agreement with my initials affixed per your request. Many thanks. 4la EXHIBIT F TELEX RCA TELEPHONE SAN FRANCISCO 278-259 (415) 956-2055 MANILA 722-2097 James B. JENsEN & Co., INc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 May 22, 1978 Mr. Finn Hedlund Gates Learjet Export Corporation P.O. Box 11186 Tucson, Arizona 85734 Dear Mr. Hedlund: You will find enclosed our confidential list of pro- spective Learjet clients in the Philippines. Some on this list are prospects with a potential for making an immedi- ate purchase whereas others are potential buyers within two or three years. In other words, this list covers pro- spective purchasers for the coming three to five years; there should be very few companies or individuals com- ing up in the near future who could be added to this list. Our marketing program is geared to interesting these companies or individuals into purchasing a Learjet as management tools or for whatever purpose it might suit them. As the interest in their possibly purchasing a Lear- jet increases, we will keep you informed so that we can maximize our efforts towards an eventual sale. 42a We trust that this list will provide you with an accurate evaluation of the potential of the Philippine market. Bear in mind, however, that the continued growth of the local economy is essential towards the success of marketing the Learjets in, the Philippines and we do hope that we will be blessed with those neces- sary ingredients. We thank you for your past cooperation and your faith in us, and we look forward to many years of fruit- ful cooperation. Sincerely, JAMES JENSEN, JR. JJJR/lja 43a EXHIBIT G TELEX RCA TELEPHONE SAN FRANCISCO 278-259 (415) 956-2055 MANILA 722-2097 James B. Jensen & Co., Inc. IMPORTERS EXPORTERS 735 MONTGOMERY STREET, SUITE 1626 SAN FRANCISCO, CALIFORNIA 94104 May 25, 1978 Mr. Stanley W. Blankenship Gates Learjet Corporation Mid-Continent Airport P. O. Box 1280 Wichita, Kansas 67201 Dear Stanley: Enclosed you will find copies of the pictures I took of your Learjet stand during your recent visit to Manila. I am also enclosing a copy of a recent letter I sent Mr. Finn Hedlund regarding the status of the Philippine market as well as a list of prospective clients with whom we have or will be exerting sales efforts. We enjoyed working together with you and I per- sonally value the fact that I found a friend in the Learjet family. Sincerely, JAMES JENSEN, JR. 44a EXHIBIT H LEARJET / PHILIPPINES, INC. prescon strata 100 bldg., suite 10h, emerald ave., pasig, metro manila, Philippines tel. 693-4259 or 693-4260 °* telex (RCA) 722-2097 16 December 1980 MR. PHIL LOVETT Senior Vice-Pres., Marketing Gates Learjet Export Corporation P. O. Box 1186 Tucson, Arizona 85734 Dear Mr. Lovett: We are in receipt of your letter of December 1, 1980, and noted your request extending the 1980 Inter- national Distributors Agreement with GLEC from its current expiration date until April 30, 1980. Mr. James Jensen, Jr., is presently on a South East Asian tour and will be proceeding from Hong Kong to San Francisco for the christmas holidays to visit his mother. Upon his return we shall transmit our formal conformity with his signature, as stated in your letter. May we reiterate our standing request to expedite mail to us that “All correspondence and brochures should be marked — HOLD FOR THE POUCH TO THE PHILIPPINES — and be sent to the following address: 45a LEARJET PHILIPPINES, INC. c/o James B. Jensen & Co., Inc. 235 Montgomery St., Suite 1626 San Francisco, California 94104 Very truly yours, LEARJET PHILIPPINES, INC. RICARDO S. TOMACRUZ Vice Pres. & Gen. Manager RST/ngm NCC hangar, manila domestic airport, manila, philippines tel. 828-31-32 46a EXHIBIT I LEARJET / PHILIPPINES, INC. prescon strata 100 bidg., suite 10h, emerald ave., pasig, metro manila, Philippines tel. 693-4259 or 693-4260 * telex (RCA) 722-2007 12 October 1978 Mr. D. B. Norton, Vice President, Product Support Gates Learjet Corporation P. O. Box 7707 Wichita, Kansas 67277 Dear Mr. Norton: I have been informed by our San Francisco office of JAMES B. JENSEN & CO., INC., that your office has not yet established a discount policy for our firm. I wish to request that your firm grant Learjet Philip- pines, Inc. and our U.S. affiliate company James B. Jen- sen & Co., Inc. the customary discounts you normally extend to your international distributors. You will find enclosed xerox copy of GLEC info- gram Ref.: BA-78-78 dated 23 August 1978 referring to GLEC list of distributors as well as copy of page 6 of that Infogram referring to our being the distributor for che Philippines. You will also find enclosed xerox copy of a request for bids from James B. Jensen & Co., Inc., ref. ASI-137-9 requesting for a price and delivery on a fuel control computer. Please advse if we would be entitled to a discount on 47a the purchase of this item; also please advise your general discount schedule on proprietary and non-proprietary items. Thank you for your attention to this request. Yours very truly, LEARJET PHILIPPINES, INC. JAMES JENSEN, JR. President JJJR/ngm encl. NCC hangar, manila domestic airport, manila, philippines tel. 83-31-32 48a EXHIBIT J LEARJET / PHILIPPINES, INC. prescon strata 100 bidg., suite 10h, emerald ave., pasig, tel. 693-4259 or 693-4260 * telex (RCA) 722-2097 11 February 1981 Mr. Lawrence McDonough Gates Learjet Export Corporation P. O. Box 11186 Tucson, Arizona 85734 Dear Larry: _ We confirm our telex of February 4, 1981 as follows: “Your letter November 25, 1980 only received now. We assure you we would not involve ourselves in the Hedlund controversy or ble court case be- tween Gates Learjet H . As your distribu- tor we value not only the good relationship we have built but also our dedicated loyalty to the company. Our letter to Lovett a mere statement of some griev- ance, definitely not directed against Gates Learjet. | Past performance will attest we have always exerted . utmost efforts as distributor. We are committed to