Petition for Writ of Certiorari — Hydro Aluminium Nordisk Aviation Products, A/S v. Torgeson

Bipreme Cour, ug

FILED

93-472 1°

No.

In The

Supreme Court of the United States

October Term, 1993

¢

HYDRO ALUMINIUM NORDISK AVIATION

PRODUCTS, A/S,

Petitioner,

PHILIP D. TORGESON AND KATHY TORGESON,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court

Of Appeals For The Fifth Circuit

i

PETITION FOR WRIT OF CERTIORARI

¢

James A. McCorQuoDALeE

Viat, HAMILTON, KocH & KNox

1717 Main Street, Suite 4400

Dallas, Texas 75201

Telephone: (214) 712-4472

Telecopier: (214) 712-4402

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Where the domestic subsidiary of a Norwegian man-

ufacturer of air cargo containers for wide-body jet aircraft

leases containers to American Airlines in Los Angeles,

California, is the injection of the product into the stream

of commerce and the foreseeable fact that American Air-

lines will use the containers on aircra‘: passing through

the Dallas/Fort Worth International Airport, without

more, adequate to establish the requisite contacts giving a

court in Texas personal jurisdiction over the Norwegian

manufacturer in a personal injury suit arising from the

use of one of the containers; a question on which this

Court equally divided in Asahi Metal Industry Co., Ltd. v.

Superior Court of California, 480 U.S. 102 (1987), and as to

which the courts of appeals are in conflict.

ii

LIST OF PARTIES AND RULE 29.1 LIST

The parties to the proceedings below in the Court of

Appeals were the Petitioner Hydro Aluminium Nordisk

Aviation Products, A/S, and the Respondents Philip D.

Torgeson and Kathy Torgeson. Nordisk Aviation Prod-

ucts, Inc. — Petitioner’s domestic subsidiary — was a sepa-

rate defendant in the District Court, but not a party to the

proceedings in the Covrt of Appeals or to this proceed-

ing.

Petitioner Hydro Aluminium Nordisk Aviation Prod-

ucts, A/S, has the following parent companies and/or

subsidiaries:

Nordisk Aviation Products, Inc.

Hydro Aluminum Bohn, Inc.

Norway: Aktieselskapet Norsk Aluminium Comp

Alplanor as

Resirk as

Fundo as

Hydro Aluminium Magnor as

Hydro Aluminium Structures as

Hydro Aluminium Vekst as

Nordisk Feral as

Hydro Aluminium Packaging as

A/S Utla

ASV Aquarius as

Hydro Aluminium Profiler as

Hydro Aluminium Formtech as

Nordisk Aviation Products as

Hydro Aluminium Jamaica as

Hydro Aluminium Equipment as

Naco Eiendom as

Vik Verk as Sweden: Naco AB

Granges Aluminium Feral AB

a iii

TABLE OF CONTENTS

Page

SPUPMEP RUNES WOMMNEU EERE, 0 ocean cswvesesescavseecer’’ i

LIST OF PARTIES AND RULE 29.1 LIST........... ii

py OB Ga ay 6 lay |. ae iv

RSS a eee ae 1

i Seeks op aly ¢u4 KOU wha es eR aee 2

STATUTE AND CONSTITUTIONAL PROVISIONS

ee re garcia eke Wa viebeeer ced. 3

WUOMN MONE GOW BOE CASE. 20. cccccesccveccecees 4

REASONS FOR GRANTING THE WRIT ........... 8

I. The question of whether mere foreseeability or

awareness is a constitutionally sufficient basis

for personal jurisdiction if a defendant’s prod-

uct makes its way into the forum state while still

in the stream of commerce is a continuing

source of conflict between the federal courts of

appeals and state courts which has not been, but

should be, settled by this Court .............. 8

Il. This case squarely presents the issue.......... 10

Ill. The Fifth Circuit’s decision misapplies World-

Wide Volkswagen and improperly broadens the

Fifth Circuit’s already expansive interpretation

of the stream-of-commerce theory of personal

es oe ath. GA das Ae oe Ss oo ae apace 12

ee naw Gye eso oc needy ewer eee o: 15

APPENDIX (Opinion and Judgment of the Court

of Appeals, the Denial of Rehearing, Memoran-

dum Decision of the District Court, and the

Affidavits presented below on the personal

i oe cine poo e' sv ase dav ORES 5 la

iV

TABLE OF AUTHORITIES

Page

Cases

Abuan v. General Electric Co., 735 F. Supp. 1479 (D.

SOG SE 50-460 04-550) 0) os suceeceeatnhias essere) 10

Asahi Metal Industry Co., Ltd. v. Superior Court of

California, 480 U.S. 102 (1987)...... 7, &, 9, W, 11, 12

Bean Dredging Corp. v. Dredge Technology Corp., 744

Fae BOWE CN GM CEs he rend oc Suxwunesenkess’s 7, 14

Boit v. Gar-Tec Products, Inc., 967 F.2d 671 (1st Cir. ;

ROMEr cir ke adn voseeesecsuuaes li seeee Ohewletvecesys 10

Curtis Management Group v. Academy of Motion Pic-

ture Arts & Sciences, 717 F. Supp. 1362 (S.D. Ind.

oo PETC TESTE TEE Eee ee ee eee eee 10

DeMoss v. City Market, Inc., 762 F. Supp. 913 (D.

| Per errr Peer err re Tere te Cr errr 10

Dehmlow v. Austin Fireworks, 963 F.2d 941 (7th Cir.

i er rE perm er ree yy rrr er errr 9

Felix v. Bomoro Kommanditgesellschaft, 241 Cal.

Cer, Sw Ta A. FO ois oot shes venreesecce: 10

Gulf Consolidated Services v. Corinth Pipeworks, 898

F.2d 1071 (5th Cir.), cert. denied, 498 U.S. 900

CCA i cM CNet Sel Ps Seer IN GSC trae 7, 13, 14

Hall v. Zambelli, 669 F. Supp. 753 (S.D. W. Va. 1987) .... 10

Helicopteros Nacionales De Columbia, S.A. v. Hall,

466 U.S. 408 (1984)... 0.0.0. eee e cece cece eee 3, 6

Irving v. Owens-Corning Fiberglass, 864 F.2d 383,

cert. denied, 493 U.S. 823 (1989).............. 7,9, 14

Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91 (Tex.

ROS 644 605 68a eae ee ee eek eee eee 10

a

TABLE OF AUTHORITIES - Continued

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ..... 6

Oswald v. Scripto, 616 F.2d 191 (5th Cir. 1980) ..... 7, 14

Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990) ..... 3

Stuart v. Spademan, 772 F.2d 1185 (5th Cir. ee 6

Wessinger v. Vetter Corp., 685 F. Supp. 769 (D. Kan.

WOU Be RAS RARAE eke wi dos oo cond ie ee ee 10

Witbeck v. Bill Cody’s Ranch, 411 N.W.2d 439 (Mich.

SNRs ieee vse ah das) cis oes hada eee ee 10

World-Wide Volkswagen v. Woodson, 444 U.S. 286

Ge 6 S50 4xdbeeie ese toeee eee eee To See tee ED

STATUTES

SD UBL, & TBO) ooo g oso vnc casesbndsesee eet 3

PP BP Cee iss dose devs cdeceetie eee 2

Texas Civil Practice & Remedies Code § 17.042(2) ..... 3

RULEs

red. %. Cit, B TR. icc csccsns certian

MISCELLANEOUS

Murphy, Personal Jurisdiction and the Stream of

Commerce: A Reappraisal and a Revised Approach,

7S Te Leds DP GON a ic idcsnavennscncevecuesae 7

+

In The

Supreme Court of the United States

October Term, 1993

*

HYDRO ALUMINIUM NORDISK AVIATION

PRODUCTS, A/S,

Petitioner,

PHILIP D. TORGESON AND KATHY TORGESON,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court

Of Appeals For The Fifth Circuit

+

PETITION FOR WRIT OF CERTIORARI

*

The Petitioner Hydro Aluminium Nordisk Aviation

Products, A/S, respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit, entered in

the above-entitled proceeding on July 1, 1993.

¢

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit, which is unreported, is set forth at Appendix

la-6a.

The memorandum decision of the United States Dis-

trict Court for the Northern District of Texas (McBryde,

D. J.), which is unreported, is set forth at Appendix

9a-12a.

JURISDICTION

Invoking federal jurisdiction under 28 U.S.C. § 1332,

Respondents brought this suit in the Northern District of

Texas. On November 12, 1992, the District Court granted

Petitioner’s Motion to Dismiss for Lack of Personal Juris-

diction and entered a final judgment as to the dismissal of

Respondents’ claims against Petitioner. See Appendix

13a-14a, infra.

On Respondents’ appeals, the Fifth Circuit on July 1,

1993, entered a judgment and an opinion reversing the

Northern District’s judgment and directing that Respon-

dents’ claims against Petitioner be remanded to the Dis-

trict Court for further proceedings. See Appendix 1la-8a,

infra. Petitioner filed a Petition for Rehearing in the Court

of Appeals on July 15, 1993. The Court of Appeals denied

the Petition for Rehearing on August 9, 1993. See Appen-

dix 15a-16a, infra.

On August 24, 1993, the Court of Appeals granted a

stay of the issuance of its mandate until, and including,

September 23, 1993, to permit the filing of this Petition.

The stay will continue until final disposition by this

Court.

The jurisdiction of this Court to review the judgment

of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1).

«

STATUTE AND CONSTITUTIONAL

PROVISIONS INVOLVED

Texas Civil Practice & Remedies Code § 17.042(2)

states:

In addition to other acts that may constitute

doing business, a nonresident does business in

this state if the nonresident:

(2) Commits a tort in whole or in part in this

state;....!

The provisions of the United States Constitution

involved are the Due Process Clauses of the Fifth and

Fourteenth Amendments:

No person shall .. . be deprived of life, liberty,

or property, without due process of law; .

Section 1 .. . nor shall any State deprive any

person of life, liberty, or property, without due

process of law;....

1 Because Texas long-arm jurisdiction reaches as far as is

constitutionally allowed, the personal jurisdiction question in

Texas is actually a federal constitutional due process inquiry.

Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 408,

412-413 (1984); Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.

1990).

STATEMENT OF THE CASE

As the Fifth Circuit found, the relevant facts are

undisputed. Petitioner is a corporation formed and exist-

ing under the laws of the Kingdom of Norway, with its

principal place of business in Holmestrand, Norway. Peti-

tioner is engaged in the business of manufacturing and

selling aluminum products, including aluminum cargo

containers for use on wide-body jet aircraft.

Nordisk Aviation Products, Inc. is a New York corpo-

ration, with its principal place of business in Los Angeles,

California. Nordisk Aviation Products, Inc. is 51% owned

by Petitioner and 49% owned by an unrelated corpora-

tion, Mercury Air Group, Inc. which is also a New York

corporation, with its principal place of business in Los

Angeles, California.

Nordisk Aviation Products, Inc. is engaged in the

business of selling, repairing and leasing air cargo con-

tainers to commercial airlines. Although Nordisk Avia-

tion Products, Inc. maintains approximately 700

containers for lease, its main business is selling Peti-

tioner’s new products and not leasing used containers.

Containers are repaired by Nordisk Aviation Products,

Inc. in Los Angeles, California.

Respondents contend that Philip Torgeson was

injured at Dallas/Fort Worth International Airport, Texas,

because of a defect in an air cargo container Nordisk

Aviation Products, Inc. had leased to American Airlines.

At the time of the accident alleged in Respondents’

Original Complaint, Nordisk Aviation Products, Inc. had

leased approximately 250 air cargo containers to Ameri-

can Airlines. The lease was negotiated on behalf of Nor-

disk Aviation Products, Inc. entirely from Los Angeles,

California. The air cargo containers were delivered f.o.b.

by Nordisk Aviation Products, Inc. to American Airlines

at Los Angeles International Airport. Under the Lease

Agreement, maintenance of the containers is done only in

Los Angeles International Airport. If the containers

require maintenance, it is the responsibility of American

Airlines to return the containers to Nordisk Aviation

Products, Inc. at Los Angeles International Airport. Any

additional maintenance performed other than by Nordisk

Aviation Products, Inc. is solely at the cost and control of

American Airlines.

Neither Petitioner nor Nordisk Aviation Products,

Inc. has any control whatsoever as to where American

Airlines uses the leased containers.

Respondents brought suit against both Petitioner and

Nordisk Aviation Products, Inc. following an accident on

July 6, 1990. Petitioner and Nordisk Aviation Products,

Inc. moved to dismiss the complaint for lack of personal

jurisdiction. (Rule 12(b)(2), Fed. R. Civ. P.) The District

Court granted Petitioner’s motion and denied Nordisk

Aviation Products, Inc.’s Motion. In granting Petitioner’s

motion, the District Court said:

“As for Defendant Hydro, the record does not

reflect that it has the same kind of contacts with

the State of Texas as does Defendant Aviation.

Defendant Hydro is not a party to the lease

agreement between American Airlines, Inc. and

Defendant Aviation, pursuant to which the con-

tainer that allegedly caused Plaintiff’s injuries

was brought to Texas. Although Defendant

Hydro ‘has sent an agent to Texas approx-

imately once or twice a year in order to meet

with American Airlines, Inc.,’ regarding Ameri-

can’s use of aluminum containers, such contact

is not sufficiently continuous or systematic as to

support a reasonable exercise of jurisdiction. See

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

779-80 (1984); Stuart v. Spademan, 772 F.2d 1185,

1190-91 (5th Cir. 1985). The unilateral acts of

Defendant Aviation in leasing containers manu-

factured by Defendant Hydro to a Texas corpo-

ration is not an appropriate consideration when

determining whether Defendant Hydro has suf-

ficient contacts with the forum to be haled into

Court here. Helicopteros Nationales De Columbia,

S.A. v. Hall, 466 U.S. 408, 416 (1984). The mere

fact that a defendant has placed its products

into the ‘stream of commerce’ of the forum state

is not alone sufficient contact to support an

assertion of general jurisdiction.” (p. 11a, infra.)

Respondents appealed. The Fifth Circuit concluded

that “Hydro Nordisk had no contacts with Texas other

than as the maker of the product which allegedly caused

harm” (p. 2a, infra) and affirmed the District Court’s

conclusion that Petitioner’s contacts with Texas did not

rise to the level necessary for general jurisdiction. The

Fifth Circuit disagreed with the District Court’s conclu-

sion that there was no specific jurisdiction over Petitioner

for the harm allegedly caused by its product. The Fifth

Circuit explained that it adheres to the “stream of com-

merce” theory of specific general jurisdiction:

“In this case, the appellants rely on a theory of

specific jurisdiction based on Hydro Nordisk’s

having placed its product into ‘the stream of

————————————————E————

commerce.’ This theory of personal jurisdiction

holds that when a manufacturer injects a prod-

uct into the stream of commerce, and it is rea-

sonably foreseeable that the product will be

used in the forum state, the manufacturer or

distributor should be subject to the jurisdiction

of that state for injuries caused by that product.

See generally, Murphy, Personal Jurisdiction and

the Stream of Commerce: A Reappraisal and a

Revised Approach, 77 Ky. L. J. 243 (1989) (and

citations therein).

“In Asahi Metal Industry Co. [v. Superior Court of

California, 480 U.S. 102 (1987),] the Supreme

Court’s most recent statement on pefsonal juris-

diction and the stream of commerce, four jus-

tices favored a narrow interpretation of the

stream of commerce doctrine. An equal number

of justices, while concurring in the result,

refused to require a showing of ‘additional con-

duct’ under the stream of commerce doctrine.

Because the court’s splintered view of minimum

contact in Asahi provides no clear guidance on

this issue, the Fifth Circuit continues to use the

stream of commerce standard as implied in

World-Wide Volkswagen [v. Woodson, 444 U.S. 286

(1980),] and embraced by the circuit in a variety

of cases. Irving v. Owens-Corning Fiberglass, 864

F.2d 383, 385-86, cert. denied, 493 U.S. 823

(1989).” (p. 4a, infra.)

The Fifth Circuit then reviewed three of its prior

reported cases? and concluded that:

2 Gulf Consol. Serv. v. Corinth Pipeworks, 898 F.2d 1071 (5th

Cir.), cert. denied, 498 U.S. 900 (1990); Bean Dredging Corp. v.

Dredge Technology Corp., 744 F.2d 1081 (5th Cir. 1984); and

Oswald v. Scripto, 616 F.2d 191 (5th Cir. 1980).

“These cases took into account and rejected the

argument of Hydro that it would be unfair to

ask it to be amenable to suit ‘anywhere that

American flies,’ as they found that Scripto and

Bean Dredging were amenable to suit where

their products went, when those destinations

were, as here, reasonably foreseeable... . ” (p.

6a, infra.)

The Fifth Circuit accordingly reversed the District

Court’s dismissal of Petitioner for lack of personal juris-

diction and remanded Respondents’ claims against Peti-

tioner to the District Court for further proceedings.

(Appendix 7a-8a, infra.)

REASONS FOR GRANTING THE WRIT

I.

The question of whether mere foreseeability or aware-

ness is a constitutionally sufficient basis for personal

jurisdiction if a defendant’s product makes its way into

the forum state while still in the stream of commerce is

a continuing source of conflict between the federal

courts of appeals and state courts which has not been,

but should be, settled by this Court. ise

This Court recognized the conflict over this issue that

existed at the time of the Asahi decision.

“In World-Wide Volkswagen itself, the state court

sought to base jurisdiction not on any act of the

defendant, but on the foreseeable unilateral

actions of the consumer. Since World-Wide Volks-

wagen, lower courts have been confronted with

cases in which the defendant acted by placing a

product in the stream of commerce, and the

Ee

stream eventually swept defendant’s product

into the forum state, but the defendant did noth-

ing else to purposefully avail itself of the market

in the forum state. Some courts have understood

the Due Process Clause, as interpreted in World-

Wide Volkswagen, to allow an exercise of per-

sonal jurisdiction to be based on no more than

the defendant’s act of placing the product in the

stream of commerce. Other courts have under-

stood the Due Process Clause and the above-

quoted language in World-Wide Volkswagen to

require the action of the defendant to be more

purposefully directed at the forum State than

the mere act of placing a product in the stream

of commerce.” Asahi, 480 U.S. at 110 (O’Connor,

J., joined by Rehnquist, C.J., and Powell and

Scalia, JJ.).

Justice Brennan, joined by Justices White, Marshall

and Blackmun, disagreed with the plurality’s interpreta-

tion of the stream-of-commerce theory. Justice Brennan

wrote that:

“As long as a participant in this process is aware

that the final product is being marketed in the

forum state, the possibility of a lawsuit there

cannot come as a surprise.” 480 U.S. at 117.

Justice Brennan concluded that jurisdiction premised

on the placement of a product in the stream of commerce

is consistent with due process principles, and no showing

of additional conduct is required. Id.

The lower courts remain deeply divided post-Asahi.

Most have rejected the additional conduct requirement of

the Asahi plurality. See, e.g., Dehmlow v. Austin Fireworks,

963 F.2d 941, 947 (7th Cir. 1992); Irving v. Owens-Corning

Fiberglass Corp., 864 F.2d 383, 385-86 (5th Cir.), cert. denied,

10

493 U.S. 823 (1989); DeMoss v. City Market, Inc., 762 F.

Supp. 913, 918 (D. Utah 1991); Abuan v. General Elec. Co.,

735 F. Supp. 1479, 1483 (D. Guam 1990); Curtis Manage-

ment Group v. Academy of Motion Picture Arts & Sciences,

717 F. Supp. 1362, 1369 (S.D. Ind. 1989); Wessinger v. Vetter

Corp., 685 F. Supp. 769, 776-77 (D. Kan. 1987); Hall v.

Zambelli, 669 F. Supp. 753, 756 (S.D. W. Va. 1987); Keen v.

Ashot Ashkelon, Ltd., 748 S.W.2d 91, 93 (Tex. 1988).

_ Other courts have adopted the Asahi plurality’s sug-

gestion that additional conduct is required before the

minimum contacts necessary for the exercise of personal

jurisdiction can be established. See, e.g., Boit v. Gar-Tec

Products, Inc., 967 F.2d 671, 683 (1st Cir. 1992); Felix v.

Bomoro Kommanditgesellschaft, 241 Cal. Rptr. 670, 675 (Cal.

App. 1987); Witbeck v. Bill Cody’s Ranch, 411 N.W.2d 439,

448 (Mich. 1987).

The conflict among the lower courts is both real and

substantial. While Asahi drew the issue into sharper

focus, the Court’s ultimate inability to muster a majority

on either side of the issue has, by and large, only further

entrenched the conflict. None of the post-Asahi cases sug-

gest any new directions for resolving the issue.

Il.

This case squarely presents the issue.

The only issue before both the District Court and the

Fifth Circuit was whether the District Court could exer-

cise personal jurisdiction over Petitioner. The Fifth Cir-

cuit acknowledged that “[t]he relevant facts are

undisputed” and that Petitioner “had no contacts with

11

Texas other than as the maker of the product which

allegedly caused harm.” (p. 2a, infra.)

Whether additional conduct is constitutionally

required makes a difference in this case because there is

no evidence of additional conduct. For example, there is

no evidence that Petitioner designed the air cargo con-

tainers for the market in Texas, advertised in Texas, estab-

lished channels for providing regular advice to customers

in Texas, or marketed the product through a distributor

or sales agent in Texas. See Asahi, 480 U.S. at 112. Peti-

tioner does not do business in Texas. It has no office,

agents, employees, or property in Texas. It does not

advertise or otherwise solicit business in Texas. It did not

create, control or employ a distribution system that dis-

tributed air cargo containers in Texas. There is no evi-

dence that Petitioner designed its product in anticipation

of sales in Texas.

In fact, there is no evidence that there has ever been a

sale or lease of Petitioner’s air cargo containers in Texas.

The issue was squarely presented and decided below.

The Fifth Circuit’s opinion expressly rests on its inter-

pretation of Asahi. If additional conduct is required under

the stream-of-commerce theory of specific jurisdiction,

then Petitioner is not subject to the District Court’s per-

sonal jurisdiction because there is no additional conduct.

If additional conduct is not required, then Petitioner is

subject to the District Court’s personal jurisdiction.

(There is no dispute that Petitioner could reasonably fore-

see that air cargo containers leased to American Airlines

in California could be used on aircraft flying through

12

American Ajirline’s hub at Dallas/Fort Worth Interna-

tional Airport.)

III.

The Fifth Circuit’s decision misapplies World-Wide

Volkswagen and improperly broadens the Fifth Circuit's

already expansive interpretation of the stream-of-com-

merce theory of personal jurisdiction.

The lease for the air cargo containers was negotiated

in Los Angeles; the air cargo containers were delivered to

American Airlines at Los Angeles International Airport;

lease maintenance of the containers is done only at Los

Angeles International Airport. There is no evidence that

Petitioner ever made any sales or leases in Texas, either

directly or through any intermediaries. Petitioner’s air

cargo containers did not come to Texas because Petitioner

or Nordisk Aviation Products, Inc. made a sale or lease in

Texas. Instead, American Airlines unilaterally brought

the containers to Texas.

This distinction is at the very core of World-Wide

Volkswagen. Even the Justices in Asahi who “refused to

require a showing of ‘additional conduct’ under the

stream of commerce doctrine”? recognized the limits of

World-Wide Volkswagen:

“To illustrate the point, the Court contrasted the

foreseeability of litigation in a State to which a

consumer fortuitously transports a defendant’s

product (insufficient contacts) with the fore-

seeability of litigation in a State where the

3 See p. 4a, infra.

13

defendant’s product was regularly sold (suffi-

cient contacts). The Court stated:

‘Hence if the sale of a product of a manufac-

turer or distributor such as Audi or Volks-

wagen is not simply an isolated occurrence,

but arises from the efforts of the manufac-

turer or distributor to serve, directly or indi-

rectly, the market for its product in other

States, it is not unreasonable to subject it to

suit in one of those States if its allegedly

defective merchandise has there been the

source of injury to its owner or to others.

The forum State does not exceed its power

under the Due Process Clause if it asserts

personal jurisdiction over a corporation that

delivers its products into the stream of com-

merce with the expectation that they will be

purchased by consumers in the forum State.’

“The Court in World-Wide Volkswagen thus took

great care to distinguish ‘between a case involv-

ing goods which reach a distant State through a

chain of distribution and a case involving goods

which reach the same State because a consumer

.. . took them there.’ ”4

Three decisions relied on in the Fifth Circuit’s opin-

ion arguably fit World-Wide Volkswagen because personal

jurisdiction was based on the defendant’s product being

sold in Texas. See Gulf Consol. Serv., Inc. v. Corinth Pipe-

works, 898 F.2d 1071, 1074 (5th Cir.), cert. denied, 498 U.S.

900 (1990) (“Corinth’s sole market for ATI oilfield casing

4 Asahi, 480 U.S. at 119-120 (quoting World-Wide Volkswagen,

444 U.S. at 297-298 & 306-307) (emphasis in original).

14

was Houston, Texas, and Corinth representatives fre-

quently called on customers there. Corinth was the char-

terer of the vessels which carried the casing shipments

from Greece to Houston.”); Irving v. Owens-Corning

Fiberglass Corp., 864 F.2d 383, 387 (5th Cir.), cert. denied,

493 U.S. 823 (1989) (“Jugometal’s fifteen-year history of

bulk asbestos shipments to Houston, ties to the Houston

testing laboratory, and knowledge that the shipping bags

were cleaned in Houston” gave Jugometal “reason to

foresee that its product was being sold in the forum

state”); Oswald v. Scripto, Inc., 616 F.2d 191, 197-98 (5th

Cir. 1980) (foreign manufacturer had distributed millions

of lighters; the lighter causing the injury was sold to the

plaintiff in Texas).

Even in Bean Dredging Corp. v. Dredge Technology

Corp., 744 F.2d 1081 (5th Cir. 1984), the court found that

the manufacturer had distributed thousands of steel cast-

ings into the stream of commerce and “evidenced no

attempt to limit the states in which its castings would be

sold.” Id. at 1085. Petitioner performed precisely this

limiting function by not making any sales or leases in

Texas.

The evidence here does not show that Petitioner

shipped products to Texas, had a history of shipping to

Texas, had any ties to any testing laboratory in Texas,

employed any services in Texas as part of a chain of

distribution, had a license agreement with any organiza-

tion in Texas, or frequently called on customers in Texas.

Unlike Corinth, Irving or Oswald, there was no evidence

presented in opposition to this motion tha: Petitioner,

directly or indirectly, sells or leases its products in Texas.

15

Without such evidence, there is no personal jurisdiction

under World-Wide Volkswagen.

?

CONCLUSION

For these reasons, this Petition for Certiorari should

be granted. The Fifth Circuit’s decision improperly

applies the stream-of-commerce theory of specific juris-

diction without appropriate constitutional limitations,

makes foreseeability the touchstone of personal jurisdic-

tion, and permits personal jurisdiction to be based upon

the unilateral activities of others. The net result was the

Fifth Circuit’s rejection of Petitioner’s argument “that it

would be unfair to ask it to be amenable to suit ‘any-

where that American flies.’ ” (p. 6a, infra.) American Air-

lines flies aircraft to virtually every state in the Union.

The fact that 250 air cargo containers were leased and

delivered to American Airlines in Los Angeles cannot,

consistent with appropriate constitutional limitations,

subject Petitioner to the personal jurisdiction of the courts

of every state to which American Airlines flies. Some

additional conduct on the part of Petitioner is constitu-

tionally required and is absent in this case.

The question presented is important and should be

settled. Foreign defendants fight personal jurisdiction

battles in the courts of this country on a daily basis. The

continuing conflict in the lower courts serves only to add

16

another layer of discovery expense and legal argument to

each of these battles in stream-of-commerce cases

Respectfully submitted,

James A. McCorQuoDALE

ViAL, HAMILTON, KocH & KNox

1717 Main Street, Suite 4400

Dallas, Texas 75201

Telephone: (214) 712-4472

Telecopier: (214) 712-4402

Attorney for Petitioner

Hydro Aluminium Nordisk

Aviation Products, A/S

la

IN THE UNITED STATES COURT OF APPEALS*

FOR THE FIFTH CIRCUIT

No. 92-9059

Summary Calendar

PHILIP D. TORGESON, and

KATHY TORGESON,

Plaintiffs-Appellants,

V. .

NORDISK AVIATION PRODUCTS, INC., ET AL.,

Defendants,

HYDRO ALUMINUM NORDISK AVIATION

PRODUCTS, A/S,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

(4:92-CV-495-A)

(Filed Jul. 1, 1993)

Before GARWOOD, JONES, and EMILIO GARZA, Circuit

Judges.*

* Any typographical and/or incorrect punctuation found

in the following Appendix pages were left intentionally to show

accurately how the original documents appeared.

* Local Rule 47.5 provides: “The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal profes-

sion.” Pursuant to that Rule, the Court has determined that this

opinion should not be published.

2a

EDITH H. JONES, Circuit Judge:

In this appeal, we review a summary judgment

granted to Hydro Aluminum Nordisk Aviation Products,

A/S (Hydro Nordisk), a Norwegian company, finding no

personal jurisdiction over it in connection with an acci-

dent that occurred at Dallas/Fort Worth Airport. After

considering the law of personal jurisdiction in this circuit,

we must REVERSE and REMAND for further proceed-

ings.

The relevant facts are undisputed. On July 6, 1990,

Philip Torgeson was injured at DFW Airport, Texas by an

allegedly defective cargo container which may have been

manufactured and/or reconditioned by Hydro Nordisk

and rented by its agent Aviation to Torgeson’s employer,

American Airlines. When Torgeson and his wife sued

Hydro Nordisk and its American subsidiary /agent Nor-

disk Aviation Products, Inc. (Aviation) in federal court,

both defendants filed motions to dismiss for lack of per-

sonal jurisdiction. The district court denied the motion as

to Aviation but granted that of Hydro Nordisk. Torgeson

timely appealed.

Hydro Nordisk had no contacts with Texas other than

as the maker of the product which allegedly caused harm;

the company also sent an agent to Texas once or twice a

year in order to meet with customers relating to their use

of the company’s product. While we agree with the dis-

trict court that these contacts do not rise to the level

necessary for general jurisdiction, we disagree that the

plaintiffs did not present facts sufficient to constitute a

prima facie case of specific jurisdiction over Hydro Nor-

disk for the harm allegedly caused by its product.

3a

The court reviews this issue de novo, as a question of

law, bearing in mind that Torgeson need only prove a

prima facie case of personal jurisdiction prior to trial.

Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1362 (5th Cir.

1990); Command-Aire Corp. v. Ontario Mechanical Sales &

Services, Inc., 963 F.2d 90, 93 (5th Cir. 1992).

Further, the review of jurisdiction has two compo-

nents: (1) the defendant must have experienced minimum

contacts with the forum state so it can reasonably antici-

pate being haled into court there; and (2) the exercise of

personal jurisdiction under the circumstances must not

offend traditional notions of fair play and substantial

justice. Asahi Metal Industry v. Superior Court of California,

480 U.S. 102, 107 S. Ct. 1026, 94 L.Ed. 92 (1987); Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174, 85

L.Ed.2d 528 (1985); Asarco, Inc. v. Grenela, Ltd., 912 F.2d

784 (Sth Cir. 1990). Minimum contacts may result in either

specific or general jurisdiction:

When a cause of action arises out of a defen-

dant’s purposeful contacts with the forum, mini-

mum contacts are found to exist and the court

may exercise its “specific” jurisdiction. Given a

single, substantial act directed towards the

forum can support specific jurisdiction. Where a

cause of action does not arise out of a foreign

defendant’s purposeful contact with the forum,

however, due process requires that the defen-

dant have engaged in “continuous and systema-

tic contacts” in the forum to support the exercise

of “general” jurisdiction over the defendant .. .

contacts of a more extensive quality and nature

are required.

ee

Dalton v. R & W Marine, Inc., 897 F.2d at 1361-62 (citations

omitted).

In this case, the appellants rely on a theory of specific

jurisdiction based on Hydro Nordisk’s having placed its

product into “the stream of commerce”. This theory of

personal jurisdiction holds that when a manufacturer

injects a product into the stream of commerce, and it is

reasonably foreseeable that the product will be used in

the forum state, the manufacturer or distributor should

be subject to the jurisdiction of that state for injuries

caused by that product. See generally, Murphy, Personal

Jurisdiction and the Stream of Commerce: A Reappraisal and a

Revised Approach, 77 Ky. L. J. 243 (1989) (and citations

therein).

In Asahi Metal Industry Co., supra, the Supreme

Court’s most recent statement on personal jurisdiction

and the stream of commerce, four justices favored a nar-

row interpretation of the stream of commerce doctrine.

An equal number of justices, while concurring in the

result, refused to require a showing of “additional con-

duct” under the stream of commerce doctrine. Because

the court’s splintered view of minimum contact in Asahi

provides no clear guidance on this issue, the Fifth Circuit

continues to use the stream of commerce standard as

implied in World Wide Volkswagen and embraced by the

circuit in a variety of cases. Irving v. Owings-Corning

Fibreglass, 864 F.2d 383, 385-86 (1989), cert. denied 493

U.S. 823, 110 S. Ct. 83, 107 L.Ed.2d 49 (1989).

Several Fifth Circuit cases have found specific juris-

diction over defendants such as Hydro Nordisk in similar

circumstances. For instance, in Gulf Consolidated Services

5a

v. Corinth Pipe Works, 898 F.2d 1071 (5th Cir. 1990), cert.

denied 498 U.S. 900 (1990), an action was commenced

against a Greek oil field manufacturer whose casing had

failed in a well drilled in Texas. The court held that

specific jurisdiction did exist over a claim arising from

the failure of the casings. Id. at 1073-74. As in the instant

case, the court in Corinth acknowledged that Corinth was

a foreign corporation not registered to do business in

Texas or any location in the United States. It had no

office, agent or assets in the United States, and the actual

sale of the casings took place in Greece as did all other

relevant financial transactions. Id. at 1073. The court

based its conclusion on the fact that from the surrounding

circumstances, Corinth could expect its casings would be

used in Texas. Further, there were minimum contacts with

Texas in the form of compliance with specifications set by

a Dallas concern and Corinth’s practice of shipping its

product to Houston. The court distinguished the Asahi

case, noting that in Asahi the forum state had no interest

in litigating the dispute, Id. at 1074, whereas the interest

of Texas in affording its resident a forum made it fair and

reasonable to litigate here.

Corinth is supported by two other similar cases, Bean

Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081

(Sth Cir. 1984), and Oswalt v. Scripto, 616 F.2d 191 (5th Cir.

1980). Both cases rely on the analysis of World Wide Volks-

wagen v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L.Ed.2d

490 (1980). In Scripto, the court held that since the defen-

dant wanted to service a large market, it had indirectly

made efforts to sell its cigarette lighters in Texas. There-

fore, Scripto could reasonably anticipate being haled into

court here. Scripto, 616 F.2d at 200. Bean Dredging reached

6a

the same result. Bean Dredging, 744 F.2d at 1085. These

cases took into account and rejected the argument of

Hydro Nordisk that it would be unfair to ask it to be

amenable to suit “anywhere that American flies,” as they

found that Scripto and Bean Dredging were amenable to

suit where their products went, when those destinations

were, as here, reasonably foreseeable by virtue of appel-

lee’s sales efforts to American at its DFW headquarters.

Finally, Hydro Nordisk maintains a variety of other

arguments that might limit jurisdiction, including the

assertion that appellants have not shown that it was

Hydro’s container that malfunctioned. Such factual argu-

ments were not addressed by the district court and are

therefore not considered by us. Inasmuch as the finding

of personal jurisdiction over Hydro Nordisk is a prima

facie one, further proceedings may demand that the case

be dismissed.

For the foregoing reasons, the district court’s judg-

ment is REVERSED and the case as to Hydro Nordisk is

REMANDED.

7a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-9059

Summary Calendar

D.C. Docket No. 4:92-CV-495-A

PHILIP D. TORGESON, and

KATHY TORGESON,

Plaintiffs-Appellants,

Vv.

NORDISK AVIATION PRODUCTS, INC., ET AL.,

Defendants,

HYDRO ALUMINUM NORDISK AVIATION PRODUCTS,

A/S,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before GARWOOD, JONES, and EMILIO M. GARZA,

Circuit Judges.

JUDGMENT

(Filed Jul. 1, 1993)

This cause came on to be heard on the record on

appeal and was taken under submission on the briefs on

file.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the District Court in this cause is reversed, and the cause

8a

as to Hydro Nordisk is remanded to the District Court for

further proceedings in accordance with the opinion of

this Court.

IT IS FURTHER ORDERED that defendant-appellee

pay to plaintiffs-appellants the costs on appeal to be

taxed by the Clerk of this Court.

July-1, 1993

ISSUED AS MANDATE:

9a

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PHILIP D. TORGESON, §

ET UX KATHY §

TORGESON, § NO. 4:92-CV-495-A

Plaintiffs, ; (Filed

VS. g Nov. 12, 1992)

NORDISK AVIATION §

PRODUCTS, INC. AND. §

HYDRO ALUMINIUM 8

NORDISK AVIATION §

PRODUCTS, A/S, ;

Defendants. §

ORDER

Came on for consideration the motion of defendants,

Nordisk Aviation Products, Inc., (“Aviation”) and Hydro

Aluminium Nordisk Aviation Products, A/S!, (“Hydro”)

to dismiss for lack of personal jurisdiction or, in the

alternative, to transfer venue. The court, having consid-

ered the motion, the response of plaintiffs, Philip D.

1 This defendant was sued as “Nordisk Aviation Products,

A/S,” see plaintiffs’ original compliant filed July 2, 1992, and

has since been referred to by that name, see motion and brief for

protective order filed October 27, 1992, and also as “Hydro

Aluminium Nordisk Aviation Products a.s”, see declaration of

Jan-Arne R¢gnningen filed September 2, 1992. In all other filings,

the name “Hydro Aluminium Nordisk Aviation Products A/S”

has been used; therefore, the court understands this to be the

correct name of the manufacturer defendant and has adopted

use of this name in the style of the action.

10a

Torgeson and Kathy Torgeson, the record and applicable

authorities, finds that the motion should be granted as to

defendant Hydro and denied as to defendant: Aviation.

Plaintiffs allege that Philip D. Torgeson was injured

while working with an aluminum cargo container manu-

factured by defendant Hydro, and leased by defendant

Aviation to plaintiff’s employer, American Airlines, Inc.

For the purposes of the motion to dismiss, the allegations

in plaintiffs’ complaint are taken as true except to the

extent that they are contradicted by defendant’s affi-

davits. Thompson v. Chrysler Motors Corp., 755 F.2d 1162,

1165 (5th Cir. 1985).

As plaintiffs point out, the lease agreement between

defendant Aviation and plaintiff’s employer provides that

the agreement will be governed by, and construed in

accordance with, the laws of the State of Texas. A party to

the agreement, American Airlines, Inc., is a Texas corpo-

ration; and, the agreement provides that all notices to be

given thereunder to American Airlines, Inc., shall be

delivered or sent to its Texas place of business. Further, it

is apparent from the agreement and from the facts of this

action that defendant Aviation was aware that the leased

aluminum cargo containers would be used by plaintiff’s

employer in Texas. The declaration of Timothy J. Garvin

filed in support of defendants‘ motion reflects that defen-

dant Aviation regularly sends agents to Texas to meet

with American Airlines, Inc., to discuss American’s use of

aluminum cargo containers. The court finds that defen-

dant Aviation could reasonably anticipate being haled

into court here. See World-Wide Volkswagen Corp. v. Wood-

son, 444 U.S. 286 (1980).

ee

lla

As for defendant Hydro, the record does not reflect

that it has the same kind of contacts with the State of

Texas as does defendant Aviation. Defendant Hydro is

not a party to the lease agreement between American

Airlines, Inc., and defendant Aviation, pursuant to which

the container that allegedly caused plaintiff's injuries was

brought to Texas. Although defendant Hydro “has sent

an agent to Texas approximately once or twice a year in

order to meet with American Airlines, Inc.”, regarding

American’s use of aluminum containers,2 such contact is

not sufficiently continuous or systematic as to support a

reasonable exercise of jurisdiction. See Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 779-80 (1984); Stuart v. Spade-

man, 772 F.2d 1185, 1190-91 (5th Cir. 1985). The unilateral

acts of defendant Aviation in leasing containers manufac-

tured by defendant Hydro to a Texas corporation is not

an appropriate consideration when determining whether

defendant Hydro has sufficient contacts with the forum

to be haled into court here. Helicopteros Nacionales de

Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984). The mere

fact that a defendant has placed its products into the

“stream of commerce” of the forum state is not alone

sufficient contact to support an assertion of general juris-

diction. See, e.g. Bearry v. Beech Aircraft Corp., 818 F.2d 370,

374-75 (Sth Cir. 1987).

The court finds that the alternative motion to transfer

venue should be denied. It appears that all events giving

rise to plaintiffs’ cause of action occurred in this district

and that plaintiffs and most, if not all, of their witnesses

reside here. Therefore,

? Declaration of Jan-Arne R¢nningen at 3.

12a

The court ORDERS that defendants’ motion to dis-

miss be, and is hereby, granted as to defendant Hydro

and denied as to defendant Aviation. The court further

ORDERS that defendants’ alternative motion to transfer

venue be, and is hereby, denied. The court determines

that there is no just reason for delay in, and hereby

directs, entry of final judgment as to the dismissal of

plaintiffs’ claims against defendant Hydro.

SIGNED November 12, 1992.

/s/ John McBryde

JOHN McBRYDE

United States

District Judge

13a

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PHILIP D. TORGESON,

ET UX KATHY

TORGESON, NO. 4:92-CV-495-A

Plaintiffs, (Filed

VS. Nov. 12, 1992)

NORDISK AVIATION

PRODUCTS, INC. AND

HYDRO ALUMINIUM

NORDISK AVIATION

PRODUCTS, A/S,

Defendants.

MMMM WM MM UM UM) UW) LH) WH)

FINAL JUDGMENT AS TO DEFENDANT HYDRO

ALUMINIUM NORDISK AVIATION PRODUCTS, A/S

In accordance with the court’s order of even date

herewith.

The court ORDERS, ADJUDGES and DECREES that

the claims of plaintiffs, Philip D. Torgeson, et ux Kathy

Torgeson, against defendant Hydro Aluminium Nordisk

Aviation Products, A/S, sued as “Nordisk Aviation Prod-

ucts, A/S”, and_also referred to as “Hydro Aluminium

Nordisk Aviation Products, a.s.”, be, and are hereby, dis-

missed for lack of personal jurisdiction. The court further

ORDERS, ADJUDGES and DECREES that defendant

l4a

Hydro Aluminium Nordisk Aviation Products, A/S, have

and recover its court costs from plaintiffs.

SIGNED November 12, 1992.

/s/ John McBryde

JOHN McBRYDE

United States

District Judge

15a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-9059

PHILIP D. TORGESON and

KATHY TORGESON,

Plaintiffs-Appellants,

versus

NORDISK AVIATION PRODUCTS, INC., ET AL.,

Defendants,

HYDRO ALUMINUM NORDISK AVIATION

PRODUCTS, A/S,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING

(Filed Aug. 9, 1993)

Before GARWOOD, JONES, and EMILIO M. GARZA,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in above entitled and numbered cause be and the same is

hereby denied.

l6a

ENTERED FOR THE COURT: 8/5/93

/s/ Edith H. Jones

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

17a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PHILIP D. TORGESON, §

ET UX, KATHY § CIVIL ACTION

TORGESON, § NO. 492CV-495 A

Plaintiffs,

VS.

NORDISK AVIATION

PRODUCTS, INC. AND

HYDRO ALUMINIUM

NORDISK AVIATION

PRODUCTS, A/S,

Defendants. §

MMMM WM UM WM WM

DECLARATION OF TIMOTHY J. GARVIN

IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

FOR LACK OF PERSONAL JURISDICTION

1. My name is Timothy J. Garvin. I am the President

of Defendant Nordisk Aviation Products, Inc. | have per-

sonal knowledge of all matters stated herein. My knowl-

edge was acquired in the course of my employment and

job duties for Nordisk Aviation Products, Inc.

2. Nordisk Aviation Products, Inc., is a corporation

formed and existing under the laws of the state of New

York, with its principal place of business in Los Angeles,

California. Nordisk Aviation Products, Inc., is 51% owned

by Hydro Aluminium Nordisk Aviation Products, A/S,

and 49% owned by Mercury Air Group, Inc.

3. Mercury Air Group, Inc., is a corporation formed

and existing under the laws of the state of New York,

18a

with its principal place of business in Los Angeles, Cali-

fornia.

4. Nordisk Aviation Products, Inc., is engaged in the

business of selling, repairing and leasing air cargo con-

tainers to commercial airlines. Although Nordisk Avia-

tion Products, Inc. maintains approximately 700

containers for lease, its main business is selling Hydro

Aluminium Nordisk Aviation Products, A/S’s new prod-

ucts and not leasing used containers. Containers are

repaired by Nordisk Aviation Products, Inc. in Los

Angeles, California.

5. At the time of the accident alleged in Plaintiffs’

Original Complaint, Nordisk Aviation Products, Inc., had

leased approximately 250 air cargo containers to Ameri-

can Airlines, Inc., under the lease attached to this Decla-

ration as Exhibit 1. The lease was negotiated on behalf of

Nordisk Aviation Products, Inc., entirely from Los

Angeles, California. The air cargo containers were deliv-

ered f.o.b. by Nordisk Aviation Products, Inc., to Ameri-

can Airlines, Inc., at Los Angeles International Airport.

Under the Lease Agreement, maintenance of the con-

tainers is included only at Los Angeles International Air-

port. If the containers require maintenance, it was the

responsibility of American Airlines, Inc. to return said

containers to Nordisk Aviation Products, Inc. at Los

Angeles International Airport. Any additional mainte-

nance performed other than by Nordisk Aviation Prod-

ucts, Inc. was solely at the cost and control of American

Airlines, Inc.

6. For the past six years on behalf of Nordisk Avia-

tion Products, Inc., | have visited Texas approximately

19a

once or twice a year in order to meet with American

Airlines, Inc. and Continental Airlines, Inc. American

Airlines, Inc. has never purchased any new product from

Nordisk Aviation Products, Inc., but did pay Nordisk

Aviation Products, Inc. approximately $125,000.00 in 1991

for rental of the containers which are used in wide body

jets throughout the American Airlines system. Nordisk

Aviation Products, Inc. has absolutely no control what-

soever as to where American Airlines, Inc. utilizes the

leased containers.

7. Nordisk Aviation Products, Inc., never agreed to

deliver any air cargo containers to American Airlines,

Inc., in the state of Texas, nor did Nordisk Aviation

Products, Inc., deliver any air cargo containers to Ameri-

can Airlines, Inc., in the state of Texas.

8. None of the directors or officers of Nordisk Avia-

tion Products, Inc., reside or are domiciled in the state of

Texas.

9. Nordisk Aviation Products, Inc., has no

employees residing or domiciled in the state of Texas, nor

has it contracted with persons residing in the state of

Texas to act on its behalf with respect to marketing,

distributing or servicing of any of its goods or products.

10. Nordisk Aviation Products, Inc., has no branch

office or comparable facilities in the state of Texas, and

has no telephone listings or mailing addresses in the state

of Texas.

11. Nordisk Aviation Products, Inc., has no bank

accounts or other tangible personal or real property in the

state of Texas.

20a

12. Nordisk Aviation Products, Inc., does not direct

any of its advertising specifically towards residents of the

state of Texas, nor does it advertise in any publications

that are directed primarily toward residents of the state

of Texas.

13. No meetings of the board of directors or share-

holders of Nordisk Aviation Products, Inc., have been

held in the state of Texas. None of the officers or directors

of Nordisk Aviation Products, Inc., have attended busi-

ness conferences or similar functions in the state of Texas.

14. The acts or omissions for which Nordisk Avia-

tion Products, Inc., is sought to be held liable in this

action, as described in the Original Complaint, all

occurred outside of the state of Texas, if they occurred at

all.

15. Nordisk Aviation Products, Inc., has not insti-

tuted any judicial proceeding in any state or federal court

located in the state of Texas. Other than this lawsuit, no

judicial proceeding has been instituted against Nordisk

Aviation Products, Inc., in any state or federal court

located in the state of Texas.

16. Other than the limited contact set forth herein,

Nordisk Aviation Products, Inc., does not do and has not

done business in the state of Texas.

17. Nordisk Aviation Products, Inc., is not and has

not been required to pay and does not pay and has not

paid taxes of any kind to the state of Texas or its political

subdivisions.

18. Nordisk Aviation Products, Inc., has not desig-

nated any person residing in the state of Texas as an

acacia een

2la

authorized agent for service of process, and has not filed

or indicated its consent to service of process in the state

of Texas.

19. Nordisk Aviation Products, Inc., does not own

and has not owned stock, securities, negotiable or non-

negotiable instruments, or commercial paper of any kind

in the state of Texas.

20. Nordisk Aviation Products, Inc., has not con-

ducted, performed or done a series of acts in the state of

Texas for the purpose of realizing a pecuniary benefit.

21. It would be unreasonable to require Nordisk

Aviation Products, Inc., to defend this action in courts

within the sate of Texas.

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true

and correct.

EXECUTED on this 6th day of August, 1992.

/s/ Timothy J. Garvin, President

TIMOTHY J. GARVIN

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PHILIP D. TORGESON, § CIVIL ACTION NO.

ET UX, 492CV-495 A

KATHY TORGESON, ;

(Filed

Plaintiffs, Sept. 2, 1992)

VS.

3

8

8

8

8

NORDISK AVIATION §

PRODUCTS, §

INC. and NORDISK §

AVIATION §

PRODUCTS, A/S, ;

8

Defendants.

DECLARATION OF JAN-ARNE R@NNINGEN IN

SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

FOR LACK OF PERSONAL JURISDICTION

1. My name is Jan-Arne R¢gnningen. I am the Man-

aging Director of Defendant Hydro Aluminium Nordisk

Aviation Products a.s I have personal knowledge of all

matters stated herein. My knowledge was acquired in the

course of my employment and job duties for Hydro Alu-

minium Nordisk Aviation Products a.s.

2. Defendant Hydro Aluminium Nordisk Aviation

Products a.s is a corporation formed and existing under

the laws of the Kingdom of Norway, with its principal

place of business in Holmestrand, Norway.

3. Hydro Aluminium Nordisk Aviation Products a.s

is engaged in the business of manufacturing and selling

aluminum products.

a

23a

4. Hydro Aluminium Nordisk Aviation Products a.s

is not incorporated in the state of Texas, nor has it quali-

fied to do business in the state of Texas. Hydro Alumi-

nium Nordisk Aviation Products A.S. has no subsidiaries

incorporated or qualified to do business in the state of

Texas.

5. None of the directors or officers of Hydro Alumi-

nium Nordisk Aviation Products a.s reside or are domi-

ciled in the state of Texas.

6. Hydro Aluminium Nordisk Aviation Products a.s

has no employees residing or domiciled in the state of

Texas, nor has it contracted with persons residing in the

state of Texas to act on its behalf with respect to market-

ing, distributing or servicing of any of its goods or prod-

ucts.

7. Hydro Aluminium Nordisk Aviation Products a.s

has no branch office or comparable facilities in the state

of Texas, and has no telephone listings or mailing

addresses in the state of Texas.

8. Hydro Aluminium Nordisk Aviation Products a.s

has no bank accounts or other tangible persona! or real

property in the state of Texas.

9. Hydro Aluminium Nordisk Aviation Products a.s

does not direct any of its advertising specifically towards

residents of the state of Texas, nor does it advertise in any

publications that are directed primarily toward residents

of the state of Texas.

10. No meetings of the board of directors or share-

holders of Hydro Aluminium Nordisk Aviation Products

a.s have been held in the state of Texas. None of the

24a

officers or directors of Hydro Aluminium Nordisk Avia-

tion Products a.s have attended business conferences or

similar functions in the state of Texas.

11. The acts or omissions for which Hydro Alumi-

nium Nordisk Aviation Products a.s is sought to be held

liable in this action, as described in the Original Com-

plaint, all occurred outside of the state of Texas, if they

occurred at all.

12. Hydro Aluminium Nordisk Aviation Products

a.s has not instituted any judicial proceeding in any state

or federal court located in the state of Texas. Other than

this lawsuit, no judicial proceeding has been instituted

against Hydro Aluminium Nordisk Aviation Products a.s

in any state or federal court located in the state of Texas.

13. For the past several years Hydro Aluminium

Nordisk Aviation Products a.s has sent an agent to Texas

approximately once or twice a year in order to meet with

American Airlines, Inc. Other than specific contacts with

American Airlines, Inc. relating to American’s use of

aluminum containers, Hydro Aluminium Nordisk Avia-

tion Products a.s does not generally do and has not

generally done business in the state of Texas.

14. Hydro Aluminium Nordisk Aviation Products

a.s is not and has not been required to pay and does not

pay and has not paid taxes of any kind to the state of

Texas or its political subdivisions.

15. Hydro Aluminium Nordisk Aviation Products

a.s has not designated any person residing in the state of

Texas as an authorized agent for service of process, and

a ———————

25a

has not filed or indicated its consent to service of process

in the state of Texas.

16. Hydro Aluminium Nordisk Aviation Products

a.s does not own and has not owned stock, securities,

negotiable or nonnegotiable instruments, or commercial

paper of any kind in the state of Texas.

17. Hydro Aluminium Nordisk Aviation Products

a.s has not conducted, performed or done a series of acts

in the state of Texas for the purpose of realizing a pecuni-

ary benefit.

18. It would be unreasonable to require Hydro Alu-

minium Nordisk Aviation Products a.s to defend this

action in courts within the state of Texas.

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true

and correct.

EXECUTED on this 25 day of August, 1992.

/s/ Jan A. Rgnningen

JAN-ARNE RONNINGEN