Petition for Writ of Certiorari — Koziol v. Bombardier-Rotax GmbH Motorenfabrik (No. 05-633)

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Text

reproduced in Appendix E to this Petition, beginning at

page 20a. The opinion denying rehearing filed August 17,

2005, is unreported and is reproduced in Appendix F to

this Petition, beginning on page 40a.

JURISDICTION

The judgment in the United States Court of Appeals

for the Eleventh Circuit was entered on April 22, 2005.

Pet.App. la. The Petition for Panel Rehearing (timely filed

on May 13, 2005) was denied on August 17, 2005. Pet.App.

20a; llth Cir.R. 40-3 (21 days). The jurisdiction of this

Court is timely invoked within 90 days thereof, pursuant

to 28 U.S.C. §1254(1) (1988) and Sup. Cr. R. 13.4.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The constitutional and statutory provisions involved

in this case — the Fifth and Fourteenth Amendments to the

United States Constitution, 28 U.S.C. §§1291, 1294(1), and

FLA. Stat. §48.193(2) — are set forth in Appendix G begin-

ning at page 41a.

STATEMENT OF THE CASE

A. Legal Result Sought by Petitioner:

A ruling that specific personal jurisdiction lies in New

Jersey and that general personal jurisdiction lies in

Florida, in this products liability case involving diversity

of citizenship between two New Jersey plaintiffs and a set

of foreign (non-U.S.) businesses and a foreign individual.

B. Origin and History of Case:

On March 29, 1999, Petitioner Theodore Koziol was a

passenger aboard an ultra-light aircraft operated by

Vincent Vitollo near Lusxewood, New Jersey. The aircraft

crashed, killing Mr. Vitollo and injuring Dr. Koziol. The

aircraft was powered by an engine, model 582-UL, de-

signed and manufactured by Respondent Bombardier-

Rotax, GmbH, Motorenfabrik (hereafter “Rotax”). Pet.App.

21a.

Mr. Vitollo had bought the engine from South Missis-

sippi Light Aircraft, one of four Rotax dealers in the

United States (hereafter “the Mississippi dealer”).

Pet.App. 22a. The Mississippi dealer purchased the engine

from Respondent Kodiak Research, Ltd., a Bahamian

business (hereafter “Kodiak”), which is the distributor of

Rotax engines for North, Central, and South America,

excluding Canada. Pet.App. 22a.

Dr. Koziol and his wife, Petitioner Lois Koziol [citizens

of New Jersey], filed a products liability action under

diversity of citizenship against the engine manufacturer

(Rotax), the sole distributor for the United States (Ko

diak), and others (all foreign persons or entities) in the

United States District Court for the District of New Jersey.

Pet.App. 21a. This Petition for Certiorari seeks relief only

as to the Austrian manufacturer (Rotax) and its Bahamian

distributor (Kodiak). Sup. Cr. R. 12.6.

The New Jersey district court allowed jurisdictional

discovery and then dismissed the complaint, finding no

personal jurisdiction, either specific or general, over the

foreign defendants. Pet.App. 21a-39a. Upon timely motion

to alter, amend, or vacate, the New Jersey district court

modified its prior ruling and transferred the case to the

United States District Court for the Southern District of

Florida. Pet.App. 17a-18a.

When the case arrived in the transferee district, the

Florida district court proceeded to rule on a new round of

dismissal motions prior to any further jurisdictional

discovery. The complaint was again dismissed for lack of

personal jurisdiction, both general and specific. Pet.App.

9a-ld4a.

On appeal to the United States Court of Appeals for

the Eleventh Circuit, the regional circuit dismissed the

portion of the appeal seeking review of the pre-transfer

jurisdictional ruling by the transferor district court. The

Eleventh Circuit held that it had no appellave jurisdiction

over such rulings by a transferor district court located in

another regional circuit, i.e., the Third Circuit. Pet.App.

15-16a.

The Eleventh Circuit subsequently affirmed the

Florida district court’s dismissal of the case [Pet.App. la-

8a], and denied a timely petition for panel rehearing.

Pet.App. 40a.

C. Jurisdictional Facts Disclosed During New Jersey

Discovery:

Respondent Bombardier-Rotax GmbH, Motorenfabrik

{hereafter “Rotax”] is an Austrian business that manufac-

tures numerous types of engines.’ The aircraft that

' Pet.App. 50a, 52a, 53a.

crashed in 1999 in this case used an engine for ultralight

aircraft manufactured by Rotax in Austria.” The U.S.

Federal Aviation Administration (“FAA”) provided evi-

dence of FAA certification to Rotax for four engine models

pursuant to a bilateral agreement between the United

States and Austria, but not the engine model at issue.’

Rotax also registered its word mark “Bombardier-Rotax”

and trademark design in 1993 with the U.S. Patent and

Trademark Office.’ Rotax manufactures engines for

numerous other products that are sold and used by con-

sumers in America, and particularly in Florida and New

Jersey. These include the engines for Sea-Doos, a popular

jet ski watercraft; the engine for a motorcycle by BMW;

and an engine for an all-terrain vehicle (“ATV”) by Abrilla.”

For the aircraft engine type at issue and several other

aircraft engines (including FAA certified engines), Rotax

has a single distributer for the Americas, excluding Can-

ada. Since 1992, this has been Respondent Kodiak Re-

search Ltd., a Bahamian business [hereafter “Kodiak”}.°

As the distributer, Kodiak is responsible for all adver-

tising in its area of distribution, including the United

States, as part of North America. However, prior to circu-

lating any ads with the Rotax name or logo in it, Kodiak

must get pre-authorization from Rotax. A violation of this

contractual obligation of pre-authorizing ad» with the

Pet.App. 21a.

Pet.App. 67a-69a.

* Pet.App. 103a-104a.

* Pet.App. 53a-55a

* Pet.App. 19a-20a, 56a, 58a, 69a, 70a

Rotax logo carries the authorized penalty of termination of

Kodiak’s entire distribution contract.’

The Distributor Agreement between Rotax and Ko-

diak further provides that Kodiak will obtain and keep in

force aviation products liability insurance covering the

engines in the amount of Three Million U.S. Dollars (US

$3,000,000.00).° In exchange, Rotax will indemnify, pro-

tect, and save harmless Kodiak from any liability, dam-

ages, and attorney fees for any failure by Rotax in the

manufacture of the engines.”

Each year, Kodiak ships approximately one thousand

ultralight (non-certified) engines, manufactured by Rotax,

into the United States for use in ultra-light aircraft.” All

one thousand enter the United States each year through

Port Everglades, Florida, including the engine at issue in

this case." Kodiak has warehouse space in Ft. Lauderdale,

Florida” and has also used a hangar at the old Executive

Airport in Ft. Lauderdale, Florida, from which Kodiak

itself sold water-damaged engines.”

Kodiak has four authorized dealers in the United

States to sell Rotax engines, located in Florida, Missis-

sippi, Wisconsin, and California.“

” Pet.App. 45a, 59a, 62a-63a, 64a, 105a-106a.

* Pet.App. 47a.

* Pet.App. 46a-47a.

* Pet.App. 88a.

" Pet.App. 74a, 90u-91a.

" Pet.App. 93a-94a.

" Pet.App. 94a

“ Pet App. 60a-61a, 84a.

The Distributor Agreement between Rotax and Ko-

diak requires Kodiak to supervise the dealers to honor

Rotax’s warranty on the engines and perform repairs at no

cost to the customers.” The Florida dealer thus receives

compensation directly from Kodiak for any warranty work

done by the Florida dealer on Rotax engines shipped by

Kodiak and brought back in by a customer to the Florida

dealer for repairs and service. Kodiak is then reimbursed

by Rotax for this warranty work.”

The Florida dealer has purchased advertising space in

Ultralight Flying!, a trade magazine, 97 times between

1995 and 2002 for marketing Rotax engines and using the

Rotax name and logo. The Mississippi dealer also pur-

chased advertising space in Ultralight Flying! 84 times in

the same relevant years, also using the Rotax name and

logo. Ultralight Flying! has a national distribution, with

187 subscribers in New Jersey.” The dealers received the

Rotax logo from Kodiak.” As noted above, all use of the

Rotax logo requires pre-authorization by Rotax.” Rotax is

also aware that the Experimental Aircraft Association

distributes a flying magazine in the U.S., and knows that

Rotax advertisements run in it.”

The Experimental Aircraft Association has two main

air shows annually for ultraligrit aircraft: (a) Oshkosh,

* Pet.App. 47a.

* Pet.App. 78a, 80a.

" Pet.App. 51a, 66a.

" Pet.App. 99a-100a.

* Pet.App. 77a.

* See footnote 7, supra.

™ Pet.App. 64a.

Wisconsin, and (b) Sun ‘N’ Fun in Lakeland, Florida.” The

Rotax Vice President for Aircraft Engines from 1998 to

2002 (inclusive of the date of Dr. Koziol’s 1999 plane crash)

was Mr. Josef Furlinger.” This Vice President for Aircraft

Engines testified that he personally travelled to Florida to

attend the Sun ‘N’ Fun annual air show two or three times

during these four years as Vice President for Aircraft. On

these occasions, he was at the Rotax booth, set up by the

Florida dealer. There were Rotax logos all around.” As

noted, supra, the Florida dealer testified that he received

the Rotax logos from Kodiak. The Florida dealer further

testified that he was prohibited from using any logos in

the booth at that annual ultralight air show other than

Rotax, as an express condition of continuing on as a dealer

of Rotax engines. He also testified that Kodiak personnel

attended the Sun ‘N’ Fun air shows annually and had their

own booth. Indeed, in various years, Kodiak provided

Rotax engines for the Florida dealer to use as displays in

his separate booth at the Florida air show.” Mr. Furlinger

saw the Rotax engines at Rotax’s booth.” Pascal Ron-

veaux, the President of Kodiak, has travelled to Florida to

attend the annual air show, Sun ‘N’ Fun, a number of

times.”

Mr. Furlinger, of Rotax, testified that if a customer or

dealer in the United States has a technical question, this

is directed to Kodiak. If Kodiak has further technical

” Pet.App. 68a.

* Pet.App. 52a, 54a, 105a-106a.

* Pet.App. 68a-69a.

* Pet.App. 75a,;76a.

* Pet.App. 69a.

Pet.App. 89a.

questions on the problem, Kodiak contacts the after-sales

department at Rotax, which then provides the answer.”

Rotax requires Kodiak to investigate accidents involv-

ing Rotax engines, according to Mr. Furlinger. Kodiak’s

responsibility to investigate such accidents in the United

States, which is part of its territory, arises under the

Distribution Agreement. Eric Tucker, of Kodiak, repre-

sented Rotax in the National Transportation Safety

Board's investigation of the aircraft crash at issue in New

Jersey involving Dr. Koziol.”

The Florida dealer testified that he also had numer-

ous dealings with Mr. Tucker from Kodiak, including

numerous visits by Mr. Tucker to the Florida dealer's place

of business in Lakeland, Florida to provide service clinics

and other services. Additionally, Mr. Ronveaux, the Presi-

dent of Kodiak, has travelled to the Florida dealership one

or more times each year, and has made multiple other

business trips to Florida.”

Kodiak’s principals receive U.S. mail in Florida, in

care of Kodiak’s Florida freight forwarder. Periodically the

Florida freight forwarder will forward this mail via the

Bahamian freight forwarder to Kodiak’s principals, the

Ronveaux family, in the Bahamas.”

Rotax also requires Kodiak to provide after-sale

service and spare parts through the four dealers in the

United States. Mr. Furlinger testified that Rotax sells

* Pet.App. 69a-70a.

” Pet.App. 70a, 107a-108a.

* Pet.App. 82a, 89a.

" Pet.App. 91la-92a.

spare parts to Kodiak and Kodiak is aired toh them

available in the United States through ealers. Mr.

Furlinger has personally met all four American dealers.

The four dealers are the only four authorized service

centers for Rotax engines in the United States, which

necessarily includes the Mississippi and Florida dealers.”

Indeed, the purpose of requiring Kodiak to have US.

dealers is for U.S. customers to have access to Rotax spare

parts.”

Mr. Furlinger further testified that Rotax provides the

manufacturer’s suggested retail price (“MSRP”) to Ko-

diak.“ Kodiak then passes the MSRP on to its four U.S.

dealers. The Florida dealer testified that it uses the MSRP

it receives from Kodiak.”

When Rotax manufactures the ultralight «rcraft

engine, it puts its operating manual in the box with the

engine. The operator’s manual includes a limited warranty

from Rotax.” When Kodiak receives the engine kit, it then

ships the same unopened box into Florida, and from there

it goes to one of the four authorized dealers, including the

Florida dealer.” This is the warruaty that the Florida

dealer testified the dealers have to service and under

which he is reimbursed directly by Kodiak when he does

warranty work on a Rotax engine.”

™ Pet.App. 48a-49a, 56a-58a, 59a, 60a-61a.

* Pet.App. 60a.

* Pet.App. 61a.

* Pet.App. 76a-77a.

* Pet.App. 65a-66a.

” Pet.App. 85a-86a.

™ Pet.App. 78a-80a.

D. Additional Data on Subjecting Rotax to Litigation in

the United States:

In addition to the instant case, Rotax and Kodiak

have participated in other products liability cases, some-

times (but not always) successfully contesting personal

jurisdiction. Published cases on this point are: Simeone v.

Bombardier-Rotax, GmbH, 360 F.Supp.2d 665 (E.D. Pa.

2005); White v. Bombardier Corp., 313 F.Supp.2d 1295

(N.D. Fla. 2004); Goodchild v. S»mbardier-Rotax, GmbH,

979 S.W.2d 1 (Tex. App. 14th Dist. 1998); Haedike v.

Kodiak Research, Ltd., 814 F.Supp. 679 (N.D. Ill. 1993);

Thomas v. Bombardier-Rotax Motorenfabrik, GmbH, 869

F.Supp. 551 (N.D. Ill. 1994).

REASONS FOR GRANTING THE WRIT

I. A. THE CIRCUITS ARE SPLIT ON APPEL-

LATE REVIEW OF A PRE-TRANSFER RUL-

ING BY A TRANSFEROR DISTRICT COURT

LOCATED IN A DIFFERENT REGIONAL

CIRCUIT.

In the case at bar, Petitioners’ Complaint was dis-

missed by the District Court for the District of New Jersey,

on the issue of both specific and general personal jurisdic-

tion.” On a timely motion to alter, amend, or vacate by

Petitioners, the New Jersey district court transferred the

case to the District Court for the Southern District of

Florida.” Meanwhile, Petitioners had filed a savings

action in the United States District Court for the Southern

* Pet.App. 20a-39a.

“ Pet.App. 17a-19a.

District of Florida. When the transferred New Jersey case

arrived in the transferee district, the two cases were

consolidated.” The Florida district court thereafter dis-

missed the consolidated cases for a lack of both general

and specific personal jurisdiction.*

Following dismissal of the consolidated cases, Peti-

tioners sought appellate review of the New Jersey district

court’s ruling, as well as the Florida district court’s ruling.

However, the Court of Appeals for the Eleventh Circuit

dismissed the part of the appeal involving the New Jersey

pre-transfer rulings, finding a lack of appellate jurisdiction

as to rulings by a district court not located in the Eleventh

Circuit.”

The normal] rule is that interlocutory orders are not

subject to immediate appellate review, but can obtain

effective review on appeal from the final judgment. String-

fellow v. Concerned Neighbors in Action, 480 U.S. 370, 375

(1987); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,

430 (1985). Transfer orders are regularly held by the

regional circuits to be interlocutory orders not subject to

immediate review. E.g., Carteret Sav. Bank v. Shushan,

919 F.2d 225, 228-30 (3rd Cir. 1990); Stelly v. Employers

Nat'l Ins. Co., 431 F.2d 1251, 1254 (5th Cir.), cert. denied,

401 U.S. 908 (1971); United States Fire Ins. Co. v. Ameri-

can Family Assur. Co., 787 F.2d 438, 439 (8th Cir. 1986); In

re Kemble, 776 F.2d 802, 806 & n.5 (9th Cir. 1985).

“ Pet.App. 3a-4a, 9a.

“@ Pet.App. Ga-14a.

* Pet.App. 15a-16a.

However, once a final judgment or final order of

dismissal is entered, the regional circuit courts of appeals

are split on the reviewability of pre-transfer rulings by

transferor district courts located in a different regional

circuit. The Eleventh Circuit dismissed the part of Peti-

tioners’ appeal that sought review of the New Jersey

district court’s ruling on lack of specific and general

personal jurisdiction in New Jersey, citing the Eleventh

Circuit’s prior opinion in Roofing & Sheet Metal Services,

Inc. v. LaQuinta Motor Inns, 689 F.2d 982, 986 (11th Cir.

1982). Another regional circuit that denies appellate

review of pre-transfer rulings by transferor district courts

located in other regional circuits is the Tenth Circuit Court

of Appeals: McGeorge v. Continental Airlines, Inc., 871

F.2d 952, 954 (10th Cir. 1989).

Petitioners respectfully submit that the better view,

which should have obtained in their case, is the rule

applied by regional circuit courts of appeals that find

appellate jurisdiction to review pre-transfer rulings by a

transferor district court located in a different regional

circuit. These are the Courts of Appeals for the Second

Circuit: Chaiken v. VV Publishing Corp., 119 F.3d 1018,

1025 n.2 (2nd Cir. 1997) [review of pre-transfer order of

outside district court dismissing two defendants for lack of

personal jurisdiction]; Fifth Circuit: 7el-Phonic Services,

Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1138 (5th Cir. 1992)

lreview of pre-transfer order of outside district court

dismissing RICO claims, even though issue not reconsid-

ered by transferee district court]; Sixth Circuit: Equal

Employment Opportunity Comm'n v. Northwest Airlines,

Inc., 188 F.3d 695, 700 (6th Cir. 1999) [review of pre-

transfer order of outside district court granting summary

judgment on one claim and dismissing other claims]; and

the Ninth Circuit: American Fidelity Fire Ins. Co. v.

United States Dist. Ct., N.D. Calif., 538 F.2d 1371, 1377 n.

4 (9th Cir. 1976) [review of transfer order by outside

district court, on appeal from final judgment in transferee

district court].

The underlying concept for the appellate authority to

review pre-transfer orders is that the transfer of a case

ships it out to the transferee district court “lock, stock, and

barrel”. Astarte Shipping Co. v. Allied Steel & Export Svc.,

76” F.2d 86, 87 (5th Cir. 1985).

As stated by Judge Learned Hand:

The review of any order of the district court

in a transferred case, made before transfer, is

within the jurisdiction of the court of appeals of

the circuit to which the cause has been trans-

ferred.

Magnetic Engineering & Mfg. Co. v. Dings, 178 F.2d 866,

870 (2nd Cir. 1950), quoted in Astarte Shipping Co. v.

Allied Steel & Export Suc., 767 F.2d at 87.

Petitioners respectfully submit that a half century

later, the analysis by Judge Hand is still cogent and

should be the rule in all circuits. Petitioners thus submit

that the Petition should be granted in order to resolve this

split among the Circuits.

B. IF THE PRE-TRANSFER JURISDICTIONAL

RULING IS APPEALABLE AFTER TRANS-

FER, IT IS TIME TO CLARIFY WHICH AP.-

PROACH IN ASAHI METAL TO “STREAM

OF COMMERCE” APPLIES IN SPECIFIC

PERSONAL JURISDICTION CASES.

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

Calif., Solano Co., 480 U.S. 102 (1987) [hereafter Asahi

Metal), this Court addressed the issue of “stream of com-

merce” in the context of specific personal jurisdiction over

an indemnity cross-claim between two non-U:S. litigants.

The case at bar is a products liability claim by US. citi-

zens against an Austrian manufacturer and a Bahamian

distributor.

The four-justice plurality opinion by Justice O’Connor

held, in Part II-A of Asahi Metals, that minimum contacts

required more than just placing a product in the “stream

of commerce”. Part II-A of the plurality opinion gave

examples of the “plus” factors that could result in a finding

of specific personal jurisdiction, including:

designing the product for the market in the fo-

rum State, advertising in the forum State, estab-

lishing channels for providing regular advice to

customers in the forum State, or marketing the

product through a distributor who has agreed to

serve as the sales agent in the forum State.

480 U.S. 112 (O’Connor, J.) (plurality).

The four-justice concurring opinion by Justice Bren-

nan disagreed with Part II-A of the plurality opinion in

Asahi Metal. This concurring opinion concluded that

placing a product into the stream of commerce is sufficient

to constitute purposeful activity directed toward the forum

State “as long as the participant in the process is aware

that the final product is being marketed in the forum

State ... ” because “the possibility of a lawsuit there

cannot come as a surprise ... nor will the litigation

present a burden for which there is no corresponding

benefit.” 480 U.S. 117 (Brennan, J.) (concurring).

There was also a separate three-justice concurring

opinion by Justice Stevens“ which likewise disagreed with

Part II-A of the plurality opinion. Concluding that Part II-

A misapplied the facts in Asahi Metal, Justice Stevens

looked to “purposeful availment” and stated:

In most circumstances, I would be inclined to

conclude that a regular course of dealing that re-

sults in deliveries of over 100,000 units annually

over a period of several years would constitute

“purposeful availment” even though the item de-

livered to the forum State was a standard prod-

uct marketed throughout the world.

480 U.S. 122 (Stevens, J.) (concurring).

Some regional circuit courts of appeals cite Part IJ-A

of the Asahi Metal plurality opinion, without more, in

dismissing for lack of specific personal jurisdiction, includ-

ing the First Circuit in Boit v. Gar-Tec Products, 967 F.2d

671, 683 (ist Cir. 1992); and the Eleventh Circuit in

Madara v. Hall, 916 F.2d 1510, 1519 (11th Cir. 1990). The

Sixth Circuit applied the plurality opinion to uphold

personal jurisdiction in Tobin v. Astra Pharmaceutical

Products, Inc., 993 F.2d 528, 543-544 (6th Cir. 1993).

“ Justices White and Blackmun joined both concurring opinions.

480 U.S. 117 & 122.

However, Petitioners respectfully submit that the

view of stream of commerce set out in the two concurring

opinions in Asahi Metal by Justices Brennan and Stevens

should control. Thus, the Eighth Circuit, in Barone v. Rich

Bros. Interstate Display Fireworks Co., 25 F.3d 610, 613-15

(8th Cir. 1994), correctly applied both concurring opinions

of Justices Stevens and Brennan iin finding minimum

contacts under their “stream of commerce” analyses.

Under this approach, Petitioners’ case should have been

sustained on the jurisdictional challenges below.

Other regional circuits have avoided choosing one

position over another, including the Third Circuit in

Pennzoil Products Co. v. Colelli & Assoc., Inc., 149 F.3d

197, 206-207 (3rd Cir. 1998); the Fifth Circuit in Ruston

Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 420

(5th Cir. 1993); and the Ninth Circuit in Shute v. Carnival

Cruise Lines, 897 F.2d 377, 382 n.3 (9th Cir.), rev'd on

other grounds, 499 U.S. 585 (1991). The Fifth Circuit, for

example, looked to World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286 (1980), in order to analyze mini-

mum contacts under the “stream of commerce” theory.

Ruston Gas, 9 F.3d 420. The Third and Ninth Circuits try

to harmonize Justice O’Connor’s plurality opinion in Part

IIl-A of Asahi Metal with Justice Brennan’s concurring

opinion. Colelli & Assoc., 149 F.3d 206-207; Shute, 897

F.2d 382 n.3.

In the case at bar, the New Jersey district court

applied a restrictive reading of only the plurality opinion

“ Certiorari was granted on the minimum contacts issue, but it

was not reached because a non-constitutional issue resolved the case.

499 U.S. 589... 90

from Asahi Metal, on specific personal jurisdiction over the

Respondents.” The facts as to “minimum contacts” show

that Rotax manufactures multiple types of engines that

enter the stream of commerce into the United States,

including ten types of aircraft engines.” Rotax has set up a

channel of distribution for these ten models of aircraft

engines to enter the United States via a single Bahamian

distributor, Kodiak, and Kodiak’s four dealers in the

United States.”

Q: Did the territory in the United States that

Rotax gave Kodiak for sale of Rotax engines

include the state of New Jersey?

A: We did not specify any specific state. But, it

means the entire U.S.

Q: It means all the states of the U.S., is that a

fair statement?

A: That’s a fair statement.”

Rotax expects them to be aggressive in market pene-

tration.” The distributor and the four dealers have been

required to use the Rotax logo in their advertising since

1998." Mr. Furlinger, as Vice President for Aircraft at

Rotax, has required them to submit their advertiser*ents

to Rotax in advance for approval.” The Mississippi and

Pet.App. 27a-33a.

” Pet.App. 50a.

“ Pet.App. 55a-56a, 60a, 70a, 84a.

” Pet.App. 56a.

” Pet.App. 59a.

* Pet.App. 105a-106a.

“ Pet.App. 62a-63a, 64a, 105a-106a.

Florida dealers have been advertising Rotax ultra-light

engines like the one in Dr. Koziol’s air crash for a number

of years, for example, running 84 and 97 ads, respectively,

between 1995 and 2002, in the trade magazine targeting

users of ultra-light aircraft engines in experimental

aircraft. This trade magazine has 187 subscribers in New

Jersey.” Rotax is also aware that the Experimental Air-

craft Association distributes a flying magazine in the U.S.,

and knows that Rotax advertisements are in it.”

Moreover, Kodiak has the responsibility of making

spare parts available throughout the United States,

including New Jersey.” This is why Rotax requires Kodiak

to have U.S. dealers.” These four dealers are the only

authorized Service Centers for Rotax engines in the

United States.” As to after-sales customer service, if a

customer has a technical question, the customer is di-

rected to Kodiak, but if Kodiak cannot answer it, the

customer is directed to the Rotax factory in Austria for the

answer.”

The air crash at issue occurred in 1999 in New Jer-

sey.” The engine was purchased by the owner and pilot of

the aircraft, Mr. Vitollo, from the Mississippi dealer, who

bought it from Kodiak.”

Pet.App. 99a-100a.

Pet.App. 64a.

Pet.App. 57a, 58a.

Pet.App. 60a-61a.

” Pet.App. 61a.

“ Pet.App. 69a-70a

“ Pet.App. 21a.

” Pet.App. 22a.

: = 2 @

Although Rotax is an Austrian business,” Rotax

registered its wordmark and logo with the United States

Patent and Trademark Office in 1993.° Rotax has also

succeeded in having four of its ten aircraft engine models

certified by the United States Federal Aviation Admini-

stration, pursuant to a bilateral agreement between

Austria and the United States,” although the engine

model at issue is uncertified.

Anticipating air crashes in the United States, Rotax

requires its distributor, Kodiak, to investigate such

crashes. Thus, Kodiak had one of its principals, Eric

Tucker, sit on the National Transportation Safety Board

investigation of the air crash at issue.”

Kodiak annually ships one thousand aircraft engines

into the United States, of the type involved in Dr. Koziol’s

air crash.“ These 1,000 aircraft engines then go to the four

authorized dealers, which each have authority to sell

anywhere in the United States.” Indeed, the Mississippi

dealer sold the engine at issue to Mr. Vitollo in New

Jersey.”

As to the “reasonableness” and “fairness” of subjecting

Rotax and/or Kodiak to personal jurisdiction in New

Jersey, New Jersey has an interest in providing a forum to

“ Pet.App. 52a-53a.

“ Pet.App. 103a-104a.

“ Pet.App. 67a-68a.

“ Pet.App. 70a, 107a-108a.

“ Pet.App. 88a.

“ Pet.App. 74a, 90a-91a.

* Pet.App. 22a.

its citizens who are injured ‘sy defective products in the

State of New Jersey. Asahi Metal, 480 U.S. 113-115.

Rotax and Kodiak are each international businesses.

Rotax would be burdened by litigating in the United

States, but has anticipated this by requiring Kodiak to

carry U.S. $3,000,000 in aviation products liability insur-

ance.” In turn, Rotax has agreed to indemnify Kodiak

from any losses due to faulty manufac‘uring by Rotax.” As

noted, supra at 11, Rotax has been litigating products

liability cases for a number of years in the United States.

In addition to liability insurance for products liability

cases in U.S.-denominated dollars, Kodiak sends Mr.

Tucker and Mr. Ronveaux into the United States on a

regular basis in connection with these Rotax aircraft

engines. Kodiak’s burden in having to litigate in the

United States, like that of Rotax, is ameliorated by the

insurance and also by Rotax’s indemnity. Like Rotax,

Kodiak has been litigating products liability cases for a

number of years in the United States. Supra at 11.

Petitioners have an interest in having a New Jersey-

based court decide their case. Unlike Rotax and Kodiak,

which are international businesses dealing in large quan-

tities of engines in international commerce, Dr. and Mrs.

Koziol are individuals with an obvious disadvantage in

economic staying power if they had to travel overseas for

extensive litigation.

The reasonableness test under Asahi Metal falls in

favor of Petitioners. It is the split over how the “stream of

“ Pet.App. 47a.

” Pet. App. 46a-47a.

commerce” theory applies to minimum contacts under

Asahi Metal that should be resolved. Petitioners submit

that the view of two concurring opinions in Asahi Metal

and the Eighth Circuit in Barone are correct on the appli-

cation of “stream of commerce”. The Petition should be

granted to resolve the split of authority, both on this Court

and in the Circuits.

Il. IT IS TIME TO CLARIFY WHETHER THE

ANALYSIS OF GENERAL PERSONAL JURIS-

DICTION INCLUDES THE ASAHI METAL AP-

PROACH; AND IF SO, TO RESOLVE THE

SPLIT IN THE CIRCUITS ON BURDEN OF

PROOF.

This Court has addressed general personal jurisdic-

tion in Perkins v. Benguet Consolidated Mining Co., 342

U.S. 437 (1952), and Helicopteros Nacionales de Columbia,

S.A. v. Hall, 466 U.S. 408 (1984). This type of personal

jurisdiction allows a defendant to be required to respond to

and defend a civil action in a State where the defendant

has “continuous and systematic” contacts with the forum

State even though the cause of action arose elsewhere.

Helicopteros, 466 U.S. 416.

As an initial matter, the plaintiff need not have

“minimum contacts” with the forum State. Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 779 (1984).

Even if the cause of action does not arise out of or

relate to a foreign corporation’s activities in the forum

State, general personal jurisdiction may be found when

there are “sufficient contacts between the State and the

foreign corporation”. Helicopteros, 466 U.S. 414.

In Perkins, the diversity action was filed in Ohio,

where the Philippine corporate defendant had set up a

partial corporate headquarters during the Japanese

occupation of the Philippine Islands during World War II.

342 U.S. 447-448. The plaintiff was a stockholder suing for

unpaid dividends and damages for failure to issue stock

certificates. 342 U.S. 439. None of the acts or omissions

occurred in Ohio, but this Court upheld personal jurisdic-

tion. 342 U.S. 448-449. There was no discussion of “rea-

sonableness” or “fairness” such as occurs in specific

personal jurisdiction cases. Compare Perkins, supra, with

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

292 (1980); Asahi Metal Industry Co., Ltd. v. Superior

Court of Calif., Solano Co., 480 U.S. 102, 113 (1987).

In Helicopteros, this Court was confronted with a civil

action in Texas against a buyer of goods who was located

in Colombia. The cause of action was for an air crash in

Peru, involving a helicopter owned by the foreign defen-

dant, which had previously purchased helicopters in

Texas, and had various employees trained in Texas. The

defendant did not solicit business in Texas, had no office in

Texas, and had occasional other contacts with Texas. 466

U.S. 410-412. This Court followed Rosenberg Bros. & Co. v.

Curtis Brown Co., 260 U.S. 516, 518 (1923), which held that

a purchaser in Oklahoma of goods in New York, absent other

significant contacts, was not subject to personal jurisdiction

in New York. Helicopteros, 466 U.S. 417.

The case at bar involves a foreign manufacturer of

aircraft engines and its foreign distributor, which sell

aircraft engines and other engines to American customers.

Petitioners sought to establish general personal jurisdic-

tion in Florida, after transfer to the Florida district court.

The pertinent Florida statute states:

A defendant who is engaged in substantial

and not isolated activity within this State,

whether such activity is wholly interstate, intra-

state, or otherwise, is subject to the jurisdiction

of the courts of this State, whether or not the

claim arises from that activity.

FLA. Stat. §48.193(2).

The Florida District Court of Appeals has held that

this statute eliminates the need for “connexity” in a case of

general personal jurisdiction. Universal Caribbean Estab-

lishment v. Bard, 543 So.2d 447, 448 (Fla.App. 4th Dist.

1989). Meeting the requirement of “substantial and not

isolated activity” under this statute satisfies the due

process requirement of minimum contacts, under Florida

case law. Nichols v. Paulucci, 652 So.2d 389, 391 (Fla.App.

5th Dist. 1995). See also AutoNation, Inc. v. Whitlock, 276

F.Supp.2d 1258, 1262 (S.D.Fla. 2003).

The case at bar involves foreign business entities

which manufacture and ship products for sale to custom-

ers in the United States market. As discussed supra,

market penetration begins with thousands of aircraft

engines entering the United States market via Port

Everglades, Florida.” The established channels of distri-

bution include a Florida dealer.”

Rotax and Kodiak are also involved in marketing

these products in Florida, as shown by the provision of the

Rotax logo to the Florida dealer, and Rotax’s requirement

of pre-authorization for each advertisement using the

* Pet.App. 74a, 88a, 90a-91a.

" Pet.App. 74a, 84a.

logo” (which itself has been registered with the United

States Patent and Trademark Office since 1993”). The logo

appears nationally (thus, including Florida) in magazine

ads by the Florida dealer as well as the other Rotax

dealers.”

The Experimental Aircraft Association has an annual

air show for ultra-light aircraft Sun ‘N’ Fun, in Lakeland,

Florida.” Rotax attends the airshow in Florida. Kodiak

attends and also has a booth at this annual airshow.

Kodiak has provided Rotax engines to the Florida dealer to

display at the Florida air show. Both Rotax and Kodiak

require the exclusive use of the Rotax logo by the Florida

dealer at this air show.”

Rotax also manufactures engines for BMW motorcy-

cles, Sea Doos, and ATVs, all of which are sold through 43

non-aviation dealers in Florida.”

Kodiak has maintained a warehouse in Ft. Lauder-

dale, Florida, and has directly sold water damaged engines

at the Ft. Lauderdale executive airport.” Kodiak’s Presi-

dent, Pascal Ronveaux, attends the annual Florida air

show, regularly visits the Florida dealer, visits Florida for

other business, and receives U.S. mail in care of his

Florida freight forwarder in Ft. Lauderdale, Florida, who

then sends it to Mr. Ronveaux in the Bahamas (via a

™ Pet.App. 45a, 59a, 62a-63a, 64a, 105a-106a.

” Pet.App. 103a-104a.

* Pet.App. 99a-100a.

* Pet.App. 68a.

* Pet.App. 68a-69a, 75a-76a.

” Pet.App. 53a-55a, 101a-102a.

™ Pet.App. 93a-94a.

related Bahamian freight forwarder).” Kodiak’s other

principal, Eric Tucker, visits Florida regularly to provide

service to the Florida dealer, as well as attend the annual

air show.”

The Florida district court assumed, without deciding,

that general personal jurisdiction was present," as did the

Court of Appeals for the Eleventh Circuit.” However, both

the district court and the court of appeals, using Part II-B

of Asahi Metal, found that it would be unreasonable to

require Rotax and Kodiak to defend in Florida, focusing on

the single engine involved in Dr. Koziol’s air crash,”

although this is not part of the Helicopteros analysis for

general personal jurisdiction.

Even though Asahi Metal and Burger King Corp. v.

Rudzewicz, 471 U.S. 462 (1985), were specific personal

jurisdiction cases, some regional circuits have applied

their requirement of “reasonableness” after having found

“minimum contacts” for general personal jurisdiction.

Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d

560, 573-575 (2nd Cir. 1996); Base Metal Trading, Ltd. v.

OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208,

213-214 (4th Cir.), cert. denied, 537 U.S. 822 (2002); Lakin

v. Prudential Securities, Inc., 348 F.3d 704, 713 (8th Cir.

2003); Glencore Grain Rotterdam, B.V. v. Shivath Rai

Harnarain Co., 284 F.3d 1114, 1125-1126 (9th Cir. 2002).

This two-step methodology is not part of the Perkins and

* Pet.App. 82a, 89a, 9la-92a.

” Pet.App. 82a.

” Pet.App. 13a.

” Pet.App. 7a-8a.

* Pet.App. 7a-8a, 13a.

Helicopteros approach to general personal jurisdiction, and

should be expressly rejected by this Court.

The Court of Appeals for the Ninth Circuit requires

the foreign defendant, once general personal jurisdiction is

found, to present a “compelling case” that the assertion of

jurisdiction is unreasonable. Amoco Egypt Oil Co. v. Leonis

Navigation Co., Inc., 1 F.3d 848, 851-852 (9th Cir. 1993).

On the other hand, the United States Court of Appeals

for the Eighth Circuit does not require a defendant to

carry any burden on why exercising jurisdiction might be

unreasonable, once minimum contacts are found to sup-

port general personal jurisdiction. Lakin v. Prudential

Securities, Inc., supra. This is also the approach by the

Eleventh Circuit in the case at bar.”

Given the test of “continuous and systematic” contacts

for general personal jurisdiction in Perkins, supra, and

Helicopteros, 466 U.S. 416, and given the lack of any

mention of a two-part analysis in those two cases, the

approach by the court of appeals was in error. It is respect-

fully submitted that the Petition be granted, under this

Court’s supervisory role over the subordinate regional

circuit courts of appeals, in order to clarify whether the

reasonableness test in Part II-B of Asahi Metals applies to

general personal jurisdiction cases; and if so, to resolve the

split in the Circuits over which party has the burden of

proof.

“ Pet. App. 7a-8a.

CONCLUSION

The Petition should be granted to clarify these issues

and to resolve the splits in the regional circuit courts of

appeals.

Respectfully submitted,

MYLES ERIC EASTWOOD

Georgia Bar No. 237700

6445 Powers Ferry Road, N.W.

Suite 215

Atlanta, Georgia 30339-2909

(770) 541-9000

Counsel of record for Petitioners

Theodore Koziol and Lois Koziol

APPENDIX A -

APPENDIX B

APPENDIX C

APPENDIX D -

APPENDIX E

APPENDIX F

APPENDIX G -

APPENDIX H -

List Of Appendices:

Page

Opinion and Judgment of the

United States Covt of Appeals

for the Eleventh C’ ‘cuit........ Pet. App. la

~ Order of Distri:, Court for the

Southern District of Florida Dis-

missing Complaint................ Pet. App. 9a

~— Order of the United States Court of

Appeals for the Eleventh Circuit

Dismissing Parts of Appeal Involv-

ing Jurisdictional Ruling by United

States District Court for the Dis-

trict of New Jersey ............... Pet. App. 15a

Opinion of District Court for the

District of New Jersey Modifying Or-

der and Transferring Case to South-

ern District of Florida............. Pet. App. 17a

— Memorandum Opinion of District

Court for the District of New Jer-

sey Dismissing Complaint .. Pet. App. 20a

~ Denial of Petition for Panel

Rehearing, by United States Court

of Appeals for the Eleventh

Si icentescceneccsesss penenadecatons Pet. App. 40a

Constitutional and Statutory Pro-

visions Involved................... Pet. App. 41a

Bombardier-Rotax GmbH Interna-

tional Aircraft Engine Distribu-

tion Agreement [extract]..... Pet. App. 44a

APPENDIX I —- Deposition of Josef Furlinger

i Pet. App. 52a

APPENDIX L

APPENDIX N -

APPENDIX P

APPENDIX Q -

APPENDIX S

APPENDIX T -

ae Pet. App. 83a

~ Affidavit of Alan J. Burrows

a Pet. App. 90a

0 Pet. App. 93a

Declaration of Daniel B. Barks

Se Pet. App. 95a

~ Declaration of Sheri Stern.... Pet. App. 99a

List of Florida Bombardier Deal-

ee Pet. App. 10la

mark “Bombardier Rotax” and de-

a Pet. App. 103a

~ Circular Letter: 19/98 ....... Pet. App. 105a

Statement of party Representatives

Pet. App. la

APPENDIX A

{DO NOT PUBLISH)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-12041

Non-Argument Calendar

D.C. Docket Nos. 02-61807-CV-JIC & 03-61096-CV-JIC

THEODORE KOZIAL* and

LOIS KOZIOL,

Plaintiffs-Appellants,

versus

BOMBARDIER-ROTAX GMBH,

MOTORENFABRIK, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(Filed April 22, 2005)

Before EDMONDSON, Chief Judge, BLACK and PRYOR,

Circuit Judges.

PER CURIAM:

Plaintiffs-Appellants Dr. Theodore Koziol and Lois

Koziol appeal the dismissal of their product liability action

* The correct spelling is “Koziol.”

Pet. App. 2a

on jurisdictional grounds against Defendants-Appellees

Bombardier-Rotax GMBH, Motorenfabrik, (“Rotax”),

Kodiak Research, Ltd. (“Kodiak”), and Rotech Research

Canada, Ltd. (“Rotax”). No reversible error has been

shown; we affirm.

Dr. Koziol was a passenger in an “ultralight” home

built aircraft piloted by Vincent Vitollo that crashed near

Lakewood, New Jersey, on 20 March 1999, shortly after

takeoff. The pilot was killed, and Dr. Koziol injured. The

aircraft was powered by a Rotax 582-UL engine that was

manufactured by Rotax, an Austrian corporation, in

Austria. Dr. Koziol alleges that engine failure caused the

crash.

The federal district court sitting in Florida granted

Defendants’ motion to dismiss based on the absence of

personal jurisdiction over the Defendants. We review de

novo the dismissal of an action for lack of personal juris-

diction. See Alexander Proudfoot Co. World Headquarters

v. Thayer, 877 F.2d 912, 916 (11th Cir. 1989). Where, as is

the case here, the district court conducts no evidentiary

hearing on the motion to dismiss, the plaintiff must

establish jurisdictional facts sufficient to withstand a

motion for directed verdict. Madara v. Hall, 916 F.2d 1510,

1514 (11th Cir. 1990). All undisputed facts in the com-

plaint are accepted as true and where facts are contested

the court is to draw all reasonable inferences in favor of

the plaintiff. Jd. When a defendant submits affidavits or

other materials supporting a meritorious challenge to

jurisdiction, the burden falls on the plaintiff to produce

sufficient evidence to establish jurisdiction. See Jet Char-

ter Service, Inc. v. Koeck, 907 F.2d 1110, 1112 (11th Cir.

1990).

Pet. App. 3a

Rotax sold the engine involved in the crash to Kodiak,

a Bahamian corporation with its principle place of busi-

ness in Nassau, Bahamas. Kodiak, in turn, sold the engine

to South Mississippi Light Aircraft (“South Mississippi”).

Kodiak retained Tropix Air Limited, another Bahamian

corporation, to ship the engine from the Bahamas to South

Mississippi. Tropix Air Limited delivered the engine to

Miami, Florida where Tropix Express, Inc., a Flerida

corporation, received the shipment. Tropix Express, Inc.

delivered the engine to South Mississippi. South ‘Missis-

sippi sold the engine to the pilot, Vitollo, and delivered the

engine in New Jersey.

Plaintiffs first brought suit in federal district court in

New Jersey against Rotax, Kodiak and Rotech, a British

Columbia Corporation with its principle place of business

in British Columbia. Rotech was not involved in the sale of

the engine; but Appellants alleged that Rotech provides

technical services, conducts accident investigations and

services warranty claims for Rotax engines in North

America. While the New Jersey action was pending,

Plaintiffs filed another action in federal district court in

the Southern District of Florida against Rotax, Kodiak and

Rotech.’

Defendants moved to dismiss the suit in New Jersey

based on the absence of personal jurisdiction. By order

dated 24 April 2003, the motion to dismiss was granted.

Instead of appealing the dismissal order, Plaintiffs moved

to reopen the New Jersey action and to have the action

* Two other Bahamian corporations and a Bahamian resident were

also named, but these defendants were dismissed for failure to attempt

to serve. Plaintiffs do not appea! that ruling

Pet. App. 4a

transferred to the Southern District of Florida.’ That

motion was granted and the action was transferred. The

district court for the Southern District of Florida consoli-

dated the transferred action with the other action earlier

filed by Plaintiffs.

Defendants again moved to dismiss for lack of per-

sonal jurisdiction. The district court granted that motion

concluding that the exercise of jurisdiction would not

comport with traditional notions of fair play and substan-

tial justice. The district court assumed, without deciding,

satisfaction of the requirements of Florida’s long-arm

statute and minimum contacts under the Due Process

clause.

A United States district court has personal jurisdic-

tion over a defendant in a diversity action if jurisdiction is

conferred by the law of the state in which the court sits.

Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th

Cir. 2002). Jurisdiction can be either general jurisdiction

or specific jurisdiction. If a defendant is subject to the

general jurisdiction of the court, the defendant must

respond in that court to any cause of action, regardless of

where the cause of action arose. General jurisdiction arises

from the defendant's contacts with the forum that are not

directly related to the cause of action being litigated. Jd.

Specific jurisdiction is founded on a party’s activities in the

forum that are related to the cause of action alleged in the

complaint. Consolidated Dev. Corp. v. Sherritt, Inc., 216

* Plaintiffs also sought review of the New Jersey district court

orders in this appeal. Appeal of the New Jersey district court orders (i)

dismissing based on a lack of personal jurisdiction and (ii) transferring

the action to the Southern District of Florida was dismissed by order

dated 9 September 2004.

Pet. App. 5a

F.3d 1286, 1292 (11th Cir. 2000). The due process contacts

requisite to establishing general personal jurisdiction are

more exacting than those for specific personal jurisdiction.

Id.; see also Seabra v. Intern'l Specialty Imports, 869 So.2d

732, 734 (Fla.Dist.Ct.App. 2004). No exercise of jurisdic-

tion, be it general or specific, may offend “tradicional

notions of fair play and substantial justice.” Jnternational

Shoe Co. v. Washington, 66 S.Ct. 154, 158 (1945) (internal

quotation and citation omitted).

Plaintiffs argue that two provisions of Florida law

support jurisdiction over Defendants. First, Plaintiffs

maintain that Rotax, Kodiak and Rotech are “engaged in

substantial and not isolated activity” within Florida and,

therefore, Fla. Stat. § 48.193(2) confers general jurisdic-

tion in Florida courts.’ Second, Plaintiffs contend that the

cause of action arose from “[o]perating, conducting, engag-

ing in, or carrying on a business or business venture” in

Florida and, therefore, Fla. Stat. § 48.193(1)a) subjects

Rotax, Kodiak and Rotech to the specific jurisdiction of

Florida courts.“

* Fla. Stat. § 48.193(2) provides:

A defendant who is engaged in substantial and not isolated

activity within this state, whether such activity is wholly in-

terstate, intrastate, or otherwise, is subject to the jurisdic-

tion of the courts of this state, whether or not the claim

arises from that activity.

* Fla. Stat. 48.193(1Xa) provides:

(1) Any person, whether or not a citizen or resident of this

state, who personally or through an agent does any of the

acts enumerated in this subsection thereby submits himself

or herself... . to the jurisdiction of the courts of this state for

any cause of action arising from the doing of any of the fol-

lowing acts:

(Continued on following page)

Pet. App. 6a

The contention that specific jurisdiction is conferred

under § 48.193(1)(a) requires only brief comment. The

crash that caused the injuries to Dr. Koziol occurred in

New Jersey. The engine claimed to have caused the crash

was manufactured in Austria. The district court found the

only contact between the engine and Florida was that it

passed through Florida on its way to Mississippi and

eventually to New Jersey. No evidence exists that any

cause of action arose as a consequence of acts of Defen-

dants that Plaintiffs seek to characterize as “operating,

conducting, engaging in, or carrying on a business” in

Florida. To establish specific jurisdiction under Florida's

long-arm statute more connexity between the cause of

action and the foreign corporation’s acts must be alleged.

See Seabra, 869 So.2d at 734.°

Plaintiffs also argue that general jurisdiction applies

under Florida’s long-statute. None of these entities actu-

ally maintained a place of business in Florida. But Appel-

lants contend that Lockwood of Sebring, a distributor of

Rotax engines in Florida (who is not a named defendant)

(a) Operating, conducting, engaging in, or carrying

on a business or business venture in this state or hav-

ing an office or agency in this state.

* Plaintiffs’ reliance on Vermeulen v. Renault, U.S.A, Inc., 985

F.2d 1534 (11th Cir. 1993) is misplaced. Vermeulen involved a company

that was wholly owned by a foreign state. Jurisdiction was based on 28

U.S.C. § 1330(a), a subject matter jurisdiction provision relating to the

Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11. The United

States is the relevant forum for due process analysis under the Foreign

Sovereign Immunities Act. Jd. at 1553. The cause of action in Ver-

meulen — an accident occurring in the United States allegedly caused by

defective design and manufacture of the car — arose from the contacts

which supported specific jurisdiction in the United States. In contrast,

the contacts through which Plaintiffs seek to hold Defendants amenable

to suit in Florida are unrelated to their products liability claim.

Pet. App. 7a

“is the face of Rotax, Kodiak, and Rotech in Florida.”

Plaintiffs cite Meier, 288 F.3d at 1276, and Universal

Caribbean Establishment v. Bard, 543 So.2d 447, 448

(Fla.Dist.Ct.App. 1989), in support of their claim that

Defendants are deemed to be doing business in Florida for

purposes of Fla.Stat. § 48.193(2). But those cases involve

suits against a corporation that had an affiliated corpora-

tion conducting business in Florida. As we stated in Meier:

The court may extend jurisdiction to any foreign

corporation where the affiliated domestic corpo-

ration manifests no separate corporate interests

of its own and functions solely to achieve the

purpose of the dominant corporation.

288 F.3d at 1273 (internal quotation and citation omitted).

Even in cases involving a parent and its subsidiary, courts

are reluctant to impute the activities of the subsidiary to

the parent when some semblance of independence has

been maintained. See Consolidated Dev. Corp., 216 F.3d at

1293-94. Plaintiffs cite us to no evidence that Lockwood is

an affiliate of Rotax, Kodiak or Rotech, that these entities

held an ownership interest in Lockwood, or that Lockwood

functions solely to achieve the purposes of these corpora-

tions. Proffered evidence shows only that Lockwood is a

distributor for Rotax and Kodiak. We doubt that Florida

would extend the principles articulated in Meier and

Universal to subject a foreign corporation to the general

jurisdiction of the state under these circumstances.

But even if — as the district court assumed without

deciding — the Florida long-arm statute conferred jurisdiction,

* Lockwood did not purchase or handle in any way the engine that

was in the aircraft in which Dr. Koziol crashed

Pet. App. 8a

we agree with the district court that the exercise of juris-

diction would offend traditional notions of fair play and

substantial justice.

Florida has little interest in providing a forum simply

because the product passed through Florida on its way to

New Jersey. The only contact the subject engine had with

Florida is that a Florida corporation received shipment of

the engine in Florida for delivery to a Mississippi corpora-

tion who then delivered the engine to a New Jersey pur-

chaser. The contact of these international] Defendants with

Florida in terms of this engine is even more removed. That

the Defendants had other unrelated (albeit still attenu-

ated) contacts with Florida as alleged by Plaintiffs is

insufficient to require them to defend in Florida against a

claim that arises in another state and has no nexus to

those Florida contacts. We are cited to no case where the

exercise of general jurisdiction was found to comport with

traditional notions of fair play and substantial justice on

contacts as attenuated as the contacts of these Defendants

with Florida. Again, the accident occurred in New Jersey

and the injured party is a New Jersey resident. The cause

of action arose out of and was related to no activity of

Defendants in Florida. Cases in which specific jurisdiction

was affirmed have no applicability.

On the basis of these facts and in the light of the

international context, the district court committed no

reversible error when it dismissed for want of personal

jurisdiction over Defendants.

AFFIRMED.

Pet. App. 9a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

THEODORE KOZIOL,

Plaintiff

vs Case No.:

BOMBARDIER-ROTAX 02-61807-CIV-COHN

GMBH, et al.,

Defendants

THEODORE KOZIOL,

Plaintiff,

v. Case No.:

BOMBARDIER-ROTAX 03-61096-CIV-COHN

GMBH, et al.,

Defendants. F

ORDER GRANTING MOTIONS TO DISMISS

FOR LACK OF PERSONAL JURISDICTION

(Filed Mar. 27, 2004)

THIS CAUSE is before the Court upon Motion to

Dismiss for Lack of Subject Matter Jurisdiction by Defen-

dant Bombardier-Rotax GmbH Motorenfabrik (“Rotax”)

‘(docket entry #4); Motion to Dismiss for Lack of Subject

Matter Jurisdiction by Defendant Rotech Research Can-

ada, Ltd. (“Rotech”) (docket entry #21); and Motion to

Dismiss for Lack of Subject Matter Jurisdiction by Defen-

dant Kodiak Research, LTD. (“Kodiak”) (docket entry

# 33). Plaintiffs Theodore Koziol and Lois Koziol have filed

oppositions to each motion along with supporting evidence.

Pet. App. 10a

The Court has reviewed the entire record and finds as

follows.

In determining an issue of personal jurisdiction,

Plaintiff has the burden of establishing a case of personal

jurisdiction over a nonresident Defendant with sufficient

evidence to withstand a motion for directed verdict.

Madara v. Hall, 916 F.2d 1510, 1514. If a Defendant

submits affidavits to the contrary, the burden falls to

Plaintiff to produce evidence supporting jurisdiction.

Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.

1999). Where Plaintiff's submissions conflict with those of

Defendant, all reasonable inferences are drawn in favor of

Plaintiff. Jd. at 1214.

A Federal District Court sitting in diversity may

exercise personal jurisdiction to the extent authorized by

the law of the state in which it sits and to the extent

allowed under the Constitution. Morris v. SSE, Inc., 843

F.3d 489, 492 (11th Cir. 1988). Therefore, this Court must

determine that the Florida long-arm statute is satisfied

and that jurisdiction comports with the due process

requirements of the Fourteenth Amendment. Posner, 178

F.3d at 1220. Due process requires certain minimum

contacts by a Defendant with the forum so that the exer-

cise of jurisdiction does not offend traditional notions of

fair play and substantial justice. /nternational Shoe v.

Washington, 326 U.S. 310, 316 (1945).

In determining whether jurisdiction would comport

with traditional notions of fair play and substantial

justice, a Court considers: (a) the burden on the Defen-

dant, (b) the forum State’s interest in adjudicating the

dispute; (c) the Plaintiffs interest in obtaining convenient

and effective relief, (d) the interstate judicial system's

Pet. App. lla

interest in obtaining the most efficient resolution of

controversies, and (e) the shared interest of the several

states in furthering fundamental substantive social

policies. Burger King Corp. V. Rudzewicz, 471 U.S. 462,

476 (1985).

The burden on an alien Defendant conducting litiga-

tion in our system is to be given significant weight in the

determination of the reasonableness of stretching persona]

Co.. Ltd. V. Superior Court of California, 480 U.S. 102,

114. (1987). When the Defendant is a foreign corporation,

a Court should also consider the procedural and substan-

tive interests of the foreign state whose interests are

affected by the assertion of jurisdiction by a Florida court.

Id. at 115. Those interests, along with the Federal Gov-

ernment’s interest in foreign relations policies, are best

served with carefu! inquiry into the reasonableness of the

assertion of jurisdiction in the particular case and with an

unwillingness to find the serious burdens on an alien

Defendant outweighed by minimal interests on the part of

the forum State. /d.

The following undisputed facts militate against the

exercise of jurisdiction.’ Plaintiffs are citizens of the State

of New Jersey. On March 20, 1999, Theodore Koziol was a

passenger aboard an ultralight aircraft operated by

Vincent Vitollo near Lakewood, New Jersey. The aircraft

* As part of their response, Plaintiffs ask for additional time to

conduct jurisdictiona] discovery. First, Plaintiffs have had ample

opportunity in New Jersey and during the pendency of this case to

conduct discovery. Second, additional discovery would add little if

anything to the analysis in light of the Court's narrow ruling.

Pet. App. 12a

aircraft was powered by an engine, model 582-UL, de-

signed and manufactured by Rotax.

Rotax is an Austrian corporation with its principal

place of business in Austria. It manufactures engines

which are used for, among other things, small aircraft in

Austria. Some of these engines are shipped to Kodiak in

the Bahamas. Kodiak is a Bahamian corporation with its

principal place of business in the Bahamas. Kodiak sells

Rotax engines FOB Nassau Bahamas to wholesalers and

original equipment manufacturers in the United States,

Central America and South America. The retailers for

Rotax engines in the United States are located in (1)

Mississippi, (2) California, (3) Wisconsin; and (4) Florida.

Kodiak hired Tropix Air Limited (“Tropix Air”), a

Bahamian corporation to deliver the engines to the United

States. Tropix Air imports the Rotax engines into the

United States through South Florida. Lockwood Aviation

Supply (“Lockwood”) is a Florida corporation and a dis-

tributor of Rotax engines. Although the parties spend

substantial time discussing the relationship between

Defendants and Lockwood, it is undisputed that the

engine involved in this litigation passed through Florida to

South Mississippi Light Aircraft (“South Mississippi”).

South Mississippi sold and delivered the engine to Mr.

Vitollo.

Rotech is a British Columbia corporation with its

principal place of business in Vernon, British Columbia,

Canada. Rotech provides technical services, conducts

Pet. App. 13a

accident investigations in North America and services

warranty claims for engine owners.’

Considering the factors set forth in Asahi Metal, the

State of Florida simply does not have a sufficient interest

in the adjudication of the dispute to warrant exercising

jurisdiction across national borders.’ None of the witnesses

are in Florida, the accident occurred in New Jersey and

the distributor of the engine is located in Mississippi. The

engine in question simply passed through the state of

Florida. As such, the forum’s interest in the suit is mini-

mal when balanced against the burden on the foreign

Defendants and the interests of the foreign states. An

exercise of jurisdiction would not comport with traditional

notions of fair play and substantial justice under these

circumstances.

In light of the international context, the heavy burden

on the alien Defendants and the slight interests of the

State of Florida, the exercise of personal jurisdiction by a

Florida court over Defendants would be unreasonable and

unfair.‘ Accordingly, it is

* Although Plaintiffs name Aero Distribution Limited, Aero

Distribution Internationa! Limited and Pascal Ronveaux as defendants,

there is nothing in the record which reveals any attempts at service. As

such, the Court concludes that Plaintiffs have abandoned there claims

against these Defendants. Further, Kodiak, in its motion to dismiss,

represents that Aero Distribution Limited is Kodiak’s former name and

Aero Distribution International Limited does not exist.

* As the Court reaches a determination that an exercise of jurisdic-

tion would be unreasonable and unfair, it assumes without deciding the

satisfaction of the requirements of the Florida Long Arm Statute, FS.

48.193 and minimum contacts under the Due Process clause.

* As part of their response, Plaintiffs request that if the Court were

inclined to dismiss the action, the case should be transferred instead.

(Continued on following page)

Pet. App. 14a

ORDERED AND ADJUDGED as follows:

1. The Motion to Dismiss for Lack of Subject Matter

Jurisdiction by Defendant Bombardier-Rotax GmbH

Motorenfabrik (“Rotax”) (docket entry # 4) is hereby

GRANTED.

2. The Motion to Dismiss for Lack of Subject Matter

Jurisdiction by Defendant Rotech Research Canada, Ltd.

(“Rotech”) (docket entry # 21) is hereby GRANTED.

3. The Motion to Dismiss for Lack of Subject Matter

Jurisdiction by Defendant Kodiak Research, LTD. (“Ko-

diak”) (docket entry # 33) is hereby GRANTED.

4. The Clerk of Court is directed to close this case.

All pending motions are hereby DENIED as moot.

DONE AND ORDERED this 22nd day of March, 2004.

/s/ James I. Cohn

JAMES I. COHN

UNITED STATES

DISTRICT JUDGE

Copies Furnished:

Robert Adam Trilling

Arthur Alan Wolk

Christopher J. Cerski

Scott M. Sarason

Connis O. Brown III

However, Plaintiffs give no indication as to where transfer would be

appropriate.

Pet. App. 15a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-12041-DD

THEODORE KOZIOL, 02-CV-1807

LOIS KOZIOL.

Plaintiffs-Appellants,

versus

BOMBADIER-ROTAX GMBH,

Motorenfabrik, individually and

as a Joint Venturer with Kodiak

Research Lid., Rotech Research

Canada, Ltd., a.k.a. Kodiak

Research Canada, Ltd., a.k.a.

Aero Distribution Limited, et al.,

ROTECH RESEARCH CANADA,

LTD., individually and as a joint

venturer with Bombadier-Rotax

GmbH, Kodiak Research Ltd., Aero

Distribution Internationa! Limited

and Pascal Ronveaux, et al.,

Defendants-Appellees.

THEODORE KOZIOL, 03-CV-61096

LOIS KOZIOL,

Plaintiffs-Appellants,

versus

Pet. App. 16a

BOMBADIER-ROTAX GMBH,

MOTORENFABRIK, KODIAK

RESEARCH CANADA, LTD.,

et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

(Filed Sep. 9, 2004)

Before MARCUS and PRYOR, Circuit Judges.

BY THE COURT:

This appeal MAY PROCEED as to the district court’s

March 22, 2004, order granting the defendants’ motions to

dismiss. 28 U.S.C. § 1291; Pitney Bowes, Inc. v. Mestre,

701 F.2d 1365, 1368 (11th Cir. 1983).

However, appellee Bombadier-Rotax GMBH Motoren-

fabrik’s motion for partial dismissal of the appeal as to the

District of New Jersey district court orders issued on April

24, 2003, and May 22, 2003, is GRANTED. We lack appel-

late jurisdiction to review the decision of a district court in

another circuit. Jn re Corrugated Container Anti-Trust

Litigation, 620 F.2d 1086, 1090-91 (5th Cir. 1980); Roofing

and Sheet Metal Services, Inc. v. La Quinta Motor Inns,

Inc., 689 F.2d 982, 985-86 (11th Cir. 1982). The appeal is

DISMISSED as to those two orders.

Pet. App. 17a

APPENDIX D

WOLK & GENTER

Arthur Alan Wolk, Esq. AW4783

1710-12 Locust Street

Philadelphia, PA 19103

(215) 545-4220

Counsel for Plaintiffs

Theodore Koziol and Lois Koziol

EDWARDS & CALDWELL

George G. Campion GC7939

1600 Route 208 North

P.O. Box 23

Hawthorne, NJ 07507

(973) 685-9500

Local Counsel for Plaintiffs

Theodore Koziol and Lois Koziol

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

THEODORE KOZIOL and <« CIVIL ACTION

LOIS KOZIOL, NO. 00-1938 (GEB)

Plaintiffs,

Vv.

BOMBARDIER-ROTAX .

GmbH, BOMBARDIER INC., .

KODIAK RESEARCH LTD., .

and ROTECH RESEARCH

CANADA LTD. a/k/a

KODIAK RESEARCH

CANADA, LTD.,

Defendants.

Pet. App. 18a

(Filed May 22, 2003)

This matter having been brought before the Court by

Wolk & Genter and Edwards & Caldwell attorney for plain-

tiffs Theodore Koziol and Leis Koziol, pursuant to

Fed.R.Civ.P. 59(e) and, alternatively pursuant to Fed.R.Civ.P.

60(b), and on notice to Robert J. Kelly of Wilson Elswer

Moskowitz Edelman & Dicker LLP, counsel for defendant

Bombardier-Rotax GmbH Motorenfabrik, and to Robert M.

Goodman of Carpenter, Bennett & Morrisey, counsel for

defendants Kodiak Research Ltd., and Rotech Research

Canada, Ltd., for an order modifying the order of April 24,

2003, which dismissed the plaintiffs’ complaint for lack of

personal jurisdiction in the District of New Jersey, by

transferring the plaintiffs’ complaint to the District Court

for the Southern District of Florida, and

The Court, having determined that the transfer of the

complaint to the District Court for the Southern District of

Florida is warranted as long as it is conditioned on the

payment by the plaintiffs of the legal fees incurred by the

defendants after April 24, 2003, in opposing the motion to

modify the order of April 24, 2003, and

Counsel for the plaintiffs, having accepted the pay-

ment of the legal fees incurred by the defendants after

April 24, 2003, as a condition for the transfer of the

plaintiffs’ complaint to the District Court for the Southern

District of Florida.

Pet. App. 19a

It is on this 22nd day of May, 2003,

ORDERED AS FOLLOWS:

1. The order of Apri] 24, 2003, is hereby modified to

permit the transfer of this action to the District Court for

the Southern District of Florida;

2. The Clerk of the District Court for the District of

New Jersey is hereby directed to take all necessary steps

to transfer the complaint, Koziol et al. v. Bombardier-

Rotax, GmbH Motorenfabrik et al., Civil Action No. 00-

1938 (GEB), to the District court for the Southern District

of Florida and to advise Clarence Maddox, the Clerk of

the District Court for the Southern District of Florida,

that a similar complaint captioned Koziol v. Bombardier-

Rotax, GmbH Motorenfabrik et al., Civil Action No.

02-61807 CIV-ROETTGER, is on file in the Clerk’s Office

and is assigned to the Fort Lauderdale Division of the

Southern District of Florida;

3. Counsel fcr the defendants shall serve an affidavit

of services on counsel for plaintiffs within 10 days of the

date of the entry of this order listing all legal fees and

expenses incurred after April 24, 2003, as a result of the

plaintiffs’ motion to modify the order of April 24, 2003;

4. The District Court for the District of New Jersey

shall maintain jurisdiction of this matter solely for the

purpose of resolving any disputes related to the enforce-

ment of the terms of this order.

/s/ Garrett E. Brown, Jr.

Garrett E. Brown, Jr.,

U.S.D.J.

Pet. App. 20a

APPENDIX E

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THEODORE KOZIOL and

LOIS KOZIOL, |

siete 3 Civ. No. 00-1938 (GEB)

’. : MEMORANDUM

BOMBARDIER-ROTAX OPINION

GmbH MOTORENFABRIK; |

BOMBARDIER, INC., KO- ‘

DIAK RESEARCH LTD., and’

ROTECH RESEARCH

CANADA LTD. a/k/a KO-

DIAK RESEARCH CANADA,

LTD.

Defendants.

(Filed Apr. 24, 2003)

BROWN, District Judge

This matter comes before the Court upon the motions

to dismiss by defendants, Bombardier-Rotax GmbH

Motorenfabrik; Bombardier Inc. (“Rotax”), Kodiak Re-

search Ltd. (“Kodiak”), and Rotech Research Canada Ltd.

a/k/a Kodiak Research Canada, Ltd. (“Rotech”), on plain-

tiffs’ complaint. The Court has subject matter jurisdiction

over this action pursuant to 28 U.S.C. § 1332(a). However,

defendants assert that this Court does not have personal

Pet. App. 21a

jurisdiction over them.’ For the reasons discussed below,

defendants’ motions to dismiss are granted.

I BACKGROUND

On March 20, 1999, plaintiff, Theodore Koziol, was a

passenger in an ultralight aircraft that crashed, leaving

him seriously injured and killing the pilot, Vincent Vitollo

(“Vitolio”). Plaintiffs’ Brief at 1. The plane was powered by

a Bombardier-Rotax 582-IIL engine. Jd. Plaintiffs allege

that the engine seized during the flight causing the crash.

Id. On April 24, 2000, plaintiffs filed a complaint in this

Court. Jd. at 2. Plaintiffs named defendants asserting that

they are liable for introducing, manufacturing, supporting,

designing, and distributing the defective engine.’ /d.

Defendants then filed motions to dismiss for lack of

personal jurisdiction. Jd. This Court eventually ordered

jurisdictional discovery, which ended on December 23,

2002. Id. On January 17, 2003, defendants reopened their

motions to dismiss for lack of personal jurisdiction. Id.

Rotax is an Austrian corporation with its principal

place of business in Gunskirchen, Austria. Rotax’s Brief at

2. Kodiak is a Bahamian corporation with its principal

place of business in the Bahamas. Kodiak’s Brief at 2.

Rotech is a British Columbia corporation organized under

the laws of the Province of British Columbia, with its

principal place of business in Vernon, British Columbia,

Canada. Rotech’s Brief at 2. Rotax Manufactures engines

* Rotech also moves in the alternative, arguing that if the Court

does find that personal jurisdiction exists over it, then it is entitled to

summary judgment.

* Plaintiffs did not name Vitollo or his estate in the lawsuit.

Pet. App. 22a

which are used for, among other things, small aircraft.

Rotax’s Brief at 2. Rotax then sells and ships its uncerti-

fied aircraft engines to Kodiak * /d.; Plaintiffs’ Brief at 10.

Prior to July 2001, no written agreement existed between

Rotax and Kodiak. Rotax’s Reply at 4. Based on their

informal agreement, Kodiak would buy and resell these

engines FOB, Nassau, Bahamas to wholesalers and

original equipment manufacturers located in North Amer-

ica and South America.‘ Jd. Rotax designed and manufac-

tured the challenged Rotax 582-UL engine bearing Serial

No. 516734 and shipped it to Kodiak. Rotax’s Brief at 3.

Kodiak sold this engine, FOB Nassau, Bahamas to South

Mississippi Light Aircraft (“South Mississippi”), a Missis-

sippi company. Kodiak’s Brief at 2. South Mississippi sold

and delivered the engine to Vitollo, of the State of New

Jersey. Plairtiffs’ Brief at 8. Rotech distributes Rotax

certified ultralight aircraft engines in the United States.

Rotax’s Reply at 13. Rotech did not design, manufacture,

sell or distribute the engine in the aircraft in which

plaintiff, Theodore Koziol, was a passenger. Rotech’s Brief

at 4. However, Rotech has an agreement with Kodiak

regarding the Rotax aircraft engines that Kodiak distrib-

utes to provide technical services and conduct accident

* The subject of this lawsuit is an uncertified aircraft engine

distributed by Kodiak.

* On or about July 24, 2001, Rotax and Kodiak entered into a

written agreement, Bombardier-Rotax GmbH International Aircraft

Engine Distributor Agreement, establishing Kodiak as Rotax’s non-

exclusive distributor of its uncertified aircraft engines in North

America, Central America and South America. Certification of Arthur

Alan Wolk (“Wolk Cert.”), Exhibit B. This Court has filed Exhibit B

under seal.

Pet. App. 23a

investigations in North America, and service warranty

claims for the engine owners.’ Plaintiffs’ Brief at 4-5.

Defendants all argue that they do not have contacts

with New Jersey such that the Court can exercise personal

jurisdiction over them. The motions are fully briefed and

are before the Court for its determination.

Il. DISCUSSION

PERSONAL JURISDICTION STANDARD

Rule 4(e) empowers the Court to exercise personal

jurisdiction over a non-resident defendant to the extent

authorized by the law of the State in which that court sits.

Fed. R. Civ. P. 4(c); North Penn Gas Co. v. Corning Natural

Gas Corp., 897 F.2d 687, 689 (3d Cir. 1990), cert. denied,

498 U.S. 847 (1990); Romero v. Aerolineas Argentines, 834

F. Supp. 673, 678 (D.N.J. 1993). New Jersey’s long-arm

statute permits the exercise of in personam jurisdiction as

far as is constitutionally permissible under the Due

Process Clause of the Fourteenth Amendment. NJ. Ct. R.

4:4-4; Carteret Savings Bank, FA v. Shushan, 954 F.2d

141, 145 (3d Cir. 1992), cert. denied, 506 U.S. 817 (1992);

Romero, 834 F. Supp. at 678. Therefore, the question

whether the Court has jurisdiction over defendants here is

determined according to federal constitutional law. Decker

v. Circus Circus Hotel, 49 F. Supp.2d 743, 745 (D.N.J.

1999) (citing Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698

(3d Cir. 1990)).

* Prior to the filing of plaintiffs’ complaint, there was no written

agreement between Kodiak and Rotech, only an informal agreement.

Pet. App. 24a

“The Due Process Clause of the Fourteenth Amend-

ment limits the power of a state court to exert personal

jurisdiction over a nonresident defendant.” Asahi Metal

Indus. Co., Ltd v. Superior Court of California, 480 U.S.

102, 108 (1987). The Court may exercise jurisdiction over

the nonresident defendants only where the defendants

have sufficient minimum contacts with New Jersey such

that the exercise of jurisdiction would not offend “tradi-

tional notions of fair play and substantial justice.” Interna-

tional Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

Under the Fourteenth Amendment, the Court can exercise

persona! jurisdiction over an out-of-state defendant where

“the defendant purposely avails itself of the privilege of

conducting activities within the forum State thus invoking

the benefits and protections of its law.” Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v.

Denckla, 357 U.S. 235, 253 (1958)). The contacts must be

of a texture and quality such that the defendants would

reasonably anticipate being haled into Court in New

Jersey. Burger King, 471 U.S. at 474 (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)).

However, the unilateral activities of the in-state plaintiff

initiating contact with the out-of-state defendant will not

satisfy the requirement of contact with the forum State.

Id. at 474-75 (quoting Hanson, 357 U.S. at 253). Rather,

plaintiffs must demonstrate that defendants somehow

purposely directed their commercial activities into the

State and thereby availed themselves of protections of the

State's laws. Id. at 476 (quoting Keeton v. Hustler Maga-

zine, Inc., 465 U.S. 770, 774-75 (1984)).

The Supreme Court has delineated two categories of

in personam jurisdiction under which a court may exercise

jurisdiction over an absent defendant. Mesalic, 897 F.2d at

Pet. App. 25a

699 (citation omitted). The Court has specific jurisdiction

over an absent defendant where the defendant purposely

directs its activities at residents of the forum State, and

the litigation results from alleged injuries arising from

those specific in-state activities. Burger King, 471 U.S. at

472 (citing Helicopteros Nationales de Columbia, S.A. v.

Hall, 466 U.S. 408, 414 (1984)). Additionally, the Court has

general jurisdiction over an out-of-state defendant when

the litigation does not arise out of the defendant’s specific

contacts with the forum but the defendant has been

carrying on “continuous and systematic” activities in the

forum such that the defendant can reasonably anticipate

being haled into court in the forum. Helicopteros, 466 U.S.

at 415.

Once the jurisdictional defense is raised, plaintiffs

bear the burden of proving that defendants’ contacts with

New Jersey are sufficient to give the Court personal

jurisdiction over defendants. Mesalic, 897 F.2d at 699;

Miller v. McMann, 89 F. Supp.2d 564, 566 (D.N.J. 2000)

(citation omitted). “[T]he plaintiffs must show with rea-

sonable particularity, the nature and extent of the defen-

dant’s contacts with the forum State so as to permit this

Court to exercise its in personam jurisdiction over the

defendant[s}.” Decker, 49 F.Supp.2d at 749 (citation

omitted’

B. DEFENDANTS’ MOTION To DIsMISs

1_R Kodiak, R h-S fie Juriadicti

Rotax argues that the Court does not have specific

jurisdiction over it because it did nothing more to purpose-

fully avail itself of the benefits of doing business in the

forum State of New Jersey other than to place the subject

Pet. App. 26a

engine into the stream of commerce. Rotax’s Brief at 10-11,

13. Kodiak also maintains that it has no contacts with

New Jersey other than placing the subject engine into the

stream of commerce. Kodiak’s Brief at 6. Rotech asserts

that it has no contacts with New Jersey and that there is

no evidence of its forum related activities relating to

plaintiffs’ claims. Rotech’s Brief at 5. Plaintiffs contend

that the Court has specific jurisdiction over defendants

under the stream of commerce theory. Plaintiffs’ Brief at 7.

Plaintiffs assert that because Rotax produced the engine

in Austria and sold the engine to Kodiak in the Bahamas

pursuant to its distribution chain who then delivered the

engine to South Mississippi in Mississippi, who subse-

quently sold and delivered the engine to Vitollo in New

Jersey, then defendants placed the product into New

Jerseys stream of commerce. Jd. at 8. Furthermore,

plaintiffs maintain that upon delivery of the Rotax engine

to Vitollo he received an express warranty from Rotax,

which gives both Kodiak and Rotech a contractual respon-

sibility to offer assistance and technical support to engine

owners. Jd. Therefore, plaintiffs argue that because Rotax

and Kodiak placed the engine into New Jersey's stream of

commerce and the injury arose out of a breach of Rotax’s

express warranty because the product was defective and

Kodiak and Rotech were negligent in providing product

support, then this Court should maintain personal juris-

diction over defendants. /d.

Under the stream of commerce theory, “a forum state

may exercise personal jurisdiction over a nonresident

defendant that delivered its goods, albeit indirectly, into

the state and either derived a substantial benefit or had a

reasonable expectation of deriving such a benefit,” A. V.

Imports, Inc. v. Col De Fratta, S.p.A., et al., 171 F.Supp.2d

Pet. App. 27a

369, 372 (D.N.J. 2001) (citing Pennzoil Prods. Co. v. Colelli

& Assocs., Inc., 149 F.3d 197, 203 (3d Cir. 1998)). Based on

the stream of commerce theory, “a manufacturer may be

held amenable to process in a forum in which its products

are sold, even if the products were sold indirectly through

importers or distributors with independent sales and

marketing schemes.” DeJames v. Magnificence Carriers,

Inc., 654 F.2d 280, 285 (3d Cir. 1981), cert. denied, 454 U.S.

1085 (1981). The stream of commerce theory is a separate

basis for establishing the minimum contacts standard.

World-Wide Volkswagen, 444 U.S. at 297. The State of New

Jersey has adopted the stream of commerce theory to

establish personal jurisdiction over a foreign manufacturer

or distributor. Charles Gender & Co. v. Telecom Equip.

Corp., 102 N.J. 460, 477 (1986).

However, in 1987, the theory of stream of commerce

was examined by the United States Supreme Court in

Asahi Metal Indus. Cu., Ltd. v. Superior Court of Califor-

nia, 480 U.S. 102, 108 (1987). There, Justice O’Connor

stated, in a plurality opinion, that “the ‘substantial con-

nection,’ [citations omitted) between the defendant and the

forum State necessary for a finding of minimum contacts

must come about by an action of the defendant purpose-

fully directed toward the forum State.” Id. at 112 (citing

Burger King, 471 U.S. at 476) (citations omitted) (empha-

sis in original). The Court then explained that “the place-

ment of a product into the stream of commerce, without

more, is not the act of the defendant purposefully directed

toward the forum State.” Jd. Furthermore, the Court found

that,

{aldditional conduct of the defendant may indi-

cate an intent or purpose to serve the market in

the forum State, for example, designing the

Id."

Based on Asahi, the defendants here must have

purposefully availed themselves of the forum State of New

* There are two other standards based on the stream of commerce

theory found in Asahi In a concurring opinion, Justice Brennan opined

that additions! conduct in the forum State did not have to be shown,

explaining that the awareness that the final product is being marketed

in the forum State is sufficient Asahi, 480 U.S. at 117. However,

Justice Brennan determined that junsdiction was not appropriate over

Asahi because it would not comport with “fair play and substantial

justice.” Jd at 116. Justice Stevens also wrote a concurring opinion

concluding that additional conduct with the forum State was not

necessary to the Court's determination. Jd at 121. Rather, Justice

Stevens held that jurisdiction over Asahi cannot be exercised because it

would be “unreasonable and unfair.” /d at 122. There is no mention of

Asahi in plaintiffs’ opposition papers, however plaintiffs did assert that

defendants engaged in additional conduct with the forum State of New

Jersey beyond placing the product inte the stream of commerce.

Plaintiffs’ Brief at 9-16. In addition, at oral argument, plaintiffs

maintained that defendants al! engaged in additional conduct with the

forum State of New Jersey such that persona! jurisdiction over them is

proper. The Third Circuit Court of Appeals has yet to adopt one

particular standard from Asahi Pennzoil, 149 F.3d at 210, n. 13.

Because plaintifis have argued that additional conduct in the forum

State was present, this Court will analyze the instant case under

Justice O'Connor's approach

Pet. App. 29a

Jersey in order for the Court to exercise personal jurisdic-

tion over them.’ Plaintiffs argue that Rotax and Kodiak

have purposefully entered the New Jersey stream of

commerce through their written distribution agreement.

Plaintiffs’ Brief at 8. Defendants assert that the written

distribution agreement was entered into after the filing of

plaintiffs’ complaint and thus is irrelevant in this deter-

mination. Rotax’s Reply at 3; Kodiak’s Reply at 4. How-

ever, there was an informal agreement establishing this

distribution process prior to the written agreement.

Rotax’s Reply at 3-4. Pursuant to this distribution process,

Rotax, as manufacturer, sold its engines to Kodiak who

then distributed them to dealers located in North America

and South America. Rotax’s Reply at 3. There is no evi-

dence of any dealers in the United States located in New

Jersey. Kodiak’s Reply at 4; Rotax’s Reply at 5. However,

even assuming that Rotax and Kodiak were aware that

the engines were eventually being shipped into and sold in

New Jersey, as noted above, the mere knowledge that the

stream of commerce may or will sweep its product into the

forum State is insufficient to establish minimum contacts.

Asahi, 480 U.S. at 112.

The question now is whether defendants engaged in

some additional conduct in the forum State of New Jersey

beyond placing the engine into the stream of commerce.

” At this point, the Court notes that plaintiffs do not appear to

allege, and this Court does not find, that Rotech was a part of the

process of manufacturing or distributing the subject engine into the

stream of commerce. Plaintiffs’ Brief at 8 As such, personal jurisdiction

over Rotech through the stream of commerce theory is unavailing.

However, this Court will continue to analyze its contacts with Néw

Jersey in an attempt to discern if personal jurisdiction is available over

this defendant.

Pet. App. 30a

This Court concludes that defendants have not engaged in

additional conduct to submit them to jurisdiction before

this Court. Applying the additional conduct listed in

Asahi, the result is that personal jurisdiction over defen-

dants is not proper. First, it is undisputed that none of the

defendants have designed the product for the market in

the forum State of New Jersey. Second, as to advertising in

the forum State, plai.ciffs argue that two of Kodiak’s

dealers, South Mississippi and Lockwood Aviation Supply,

advertised Rotax engines in the United States publication,

Ultra Flyer, approximately 181 times since 1995, which

were distributed to approximately 187 New Jersey resi-

dents. Plaintiffs’ Brief at 13, 19. However, advertisements

of Rotax’s product by Kodiak’s authorized dealers in a

national magazine that a handful of New Jersey residents

subscribe to does not amount to additional conduct di-

rected to the forum State of New Jersey. Plaintiffs also

contend that Rotax advertisements were featured ap-

proximately eight times since 1993 in another United

States publication, Trade-A-Plane, of which approximately

2,500 New Jersey residents receive the magazine. Jd. at

19. Again, eight advertisements since 1993, in a national

publication, are not purposeful advertisements directed to

the forum State of New Jersey.

Third, defendants have not “establish{ed] channels for

providing regular advice to customers in the forum State.”

Plaintiffs argue that the engine purchased by Vitollo from

South Mississippi was accompanied by an express war-

ranty from Rotax of which Kodiak and Rotech were re-

sponsible for carrying out, and that defendants failed to

provide the proper service to Vitollo. Plaintiffs’ Brief at 8.

First, because plaintiffs do not appear to allege, and this

Court has not found, that Rotech was a part of placing the

Pet. App. 3la

questioned engine into the stream of commerce, then the

stream of commerce and additional conduct from Ahasi do

not apply to Rotech itself. However, specific jurisdiction

cen still be accomplished over Rotech through one contact

with New Jersey and the injury arising out of it. Burger

King, 471 U.S. at 472. Here, Rotech did not have any

contacts with New Jersey relating to plaintiffs’ injury. The

injury arose out of the alleged defective engine of which

plaintiffs contend that Rotech was negligent in not inform-

ing them of the defective nature of the product. This does

not establish a Rotech contact with New Jersey, if any-

thing it establishes that Rotech failed to have a contact

with New Jersey. Therefore, specific jurisdiction over

Rotech is not possible. However, the Court will now ana-

lyze Rotech’s actions on behalf of Kodiak and Rotax in

attempting to prove additional contacts under the stream

of commerce theory. Regarding the warranty, this Court

finds that it does not provide a channel for regular advice

to customers in New Jersey. Warranty issues are not

handled in New Jersey, rather they are serviced by Rotech

in Canada. Deposition of Pascal Ronveaux (“Ronveaux

Dep.”) at 22-23. There is no support service system in New

Jersey. In fact, as plaintiffs acknowledged, the engines are

taken to the authorized distributor to be overhauled, not

in New Jersey, and then sent to Rotax in Austria. Plain-

tiffs’ Brief at 23.

In addition, plaintiffs assert that because of Rotech’s

agreement with Kodiak to provide product support and

service bulletins regarding the defective nature of the

Rotax engine, then this establishes contacts by al) defen-

dants with New Jersey. Jd. at 8. Plaintiffs also contend that

because Rotech sent an accident investigator to New Jersey

following the accident, that this establishes additional

Pet. App. 32a

contacts by all defendants. Plaintiffs’ Brief at 12. As to

Rotech’s agreement with Kodiak, who is a distributor for

Rotax, this Court does not find that these are additional

contacts with the forum State of New Jersey. First, as

noted earlier, Rotech had no contact with Vitollo in New

Jersey. In addition, Rotech provides these services

throughout North America, not just to New Jersey. There

was no service center in New Jersey for New Jersey

customers to utilize. Furthermore, providing a service to

investigate all accidents that occur throughout North

America also does not establish additional contacts with

New Jersey. There are no investigators located in New

Jersey nor is there an exclusive New Jersey territory. On

the contrary, the investigators service the entire North

America. Finally, sending an investigator to the forum

State after ao accident has occurred does not constitute

establishing a channel for providing regular advice to

customers in the forum State.’

As to the last prong, “marketing the product through a

distributor who has agreed to serve as the sales agent in

the forum State,” it is undisputed that Kodiak is Rotax’s

distributor and is located in Nassau, Bahamas. There is no

evidence that there were any dealers located in New

Jersey prior te their written agreement. It is also undis-

puted that ‘following the written agreement, Kodiak’s

dealers through which they sell Rotax’s engines through-

out the United States are located in (1) Mississippi, (2)

California; (3) Wisconsin; and (4) Florida. Ronveaux Dep.

at 34-35. Therefore, there is no distributor or dealer

* Specific jurisdiction over Rotech also cannot be exercised for

conducting the accident investigation in New Jersey. Plaintiffs’ inyury

did not arise from Rotech’s accident investigation.

Pet. App. 33a

located in New Jersey. Thus, plaintiffs have failed to

establish specific jurisdiction over defendants.

2 R Kodiak, Rotech - G 1 Juriadicti

Plaintiffs argue that defendants have contacts that

are continuous and systematic with the State of New

Jersey that enables this Court to exercise general! jurisdic-

tion over them. Plaintiffs’ Brief at 16. Defendants contend

that they are not authorized; licensed or registered to do

business in New Jersey, and that, in any event, they have

no contacts with New Jersey that are continuous and

systematic. Rotax’s Brief at 7; Kodiak’s Brief at 8; Rotech’s

Brief at 7.

The seminal case, Helicopteros Nacionales de Colom-

bia. S.A. v. Hall, 466 U.S. 408, 416 (1984), governs the

standard for general jurisdiction over a foreign defendant.

There, the Supreme Court held that the foreign defen-

dant’s contacts with the forum State must be “continuous

and systematic” for the Court to exercise general jurisdic-

tion. Id. at 416. In Helicopteros, the Supreme Court found

that the foreign defendant’s contacts were not continuous

and systematic in the forum State of Texas. Jd. at 418-19.

The contacts included: (1) a trip to Texas by the defen-

dant’s CEO to negotiate a contract with the victim’s

employer; (2) purchases of four million dollars including

helicopters, parts and accessories from a Texas manufac-

turer; (3) sending pilots, management and maintenance

personnel to Texas for training; (4) sending pilots to Texas

to ferry helicopters; and (5) accepting into its New York

bank account checks drawn on a Houston bank. /d. at 410-

11. With this in mind, the Court now turns to plaintiffs’

Pet. App. 34a

allegations of Rotax’s contacts with the forum State of

New Jersey.

a. Rotax

Plaintiffs maintain that the following alleged contacts

with New Jersey are continuous and systematic such that

general jurisdiction over Rotax can be exercised: (1)

Rotax’s distribution agreement with Kodiak resulting in

1,000 engines distributed into the United States annually;

(2) Rotax’s advertisements; (3) Rotax’s distribution process

in the United States for its certified engines through

Rotech, resulting in forty-three aircraft equipped with

Rotax engines registered with the Federal Aviation Ad-

ministration (“FAA”); (4) Rotax’s distribution to New

Jersey since 1989, of 2,750 engines found in snowmobiles,

ATVs and See-Doos; and (5) motorcycles with Rotax

engines available in New Jersey.” Plaintiffs’ Brief at 19-20.

Applying the standard in Helicopteros to the facts

here, this Court concludes that there are insufficient

contacts with New Jersey for general jurisdiction over

* Plaintiffs also submitted a declaration from John Vitollo, the son

of the pilot Vitollo, asserting that his father was a sub-distributor of

Rotax engines, that the ultralight community knows that Rotax sells

engines in New Jersey, and that based on his experience, and that of

his father, Rotax does business in New Jersey. Wolk Cert., Exhibit A.

However, plaintiffs have not provided any evidence to demonstrate

these alleged Rotax contacts with New Jersey beyond John Vitollo’s

mere conclusory statements. In addition, John Vitollo made legal

conclusions, which is a determination that rests entirely with this

Court. Plaintiffs also rely upon the report of Joe Wisenblit, Ph.D., who

concluded that Rotax “established continued and systematic contact”

with New Jersey. /d., Exhibit L. However, Dr. Wisenblit’s report is also

a legal conclusion and thus cannot be utilized by this Court in its

determination.

Pet. App. 35a

Rotax. First, it is undisputed that Rotax does not have a

place of business in New Jersey and never has been

licensed to do business in New Jersey. Helicopteros, 466

U.S. at 416. Next, plaintiffs are incorrect in their assertion

that Kodiak annually distributes 1,000 engines into the

United States. The record reveals that 1,000 engines are

annually shipped in and out of the Bahamas. Ronveaux

Dep. at 84-85. In any event, plaintiffs have not produced

any evidence of the amount of these engines entering the

forum State of New Jersey. As noted earlier, the contacts

with New Jersey regarding the distribution agreement

with Kodiak creates the possibility that Rotax engines

could be swept into New Jersey, but is not such that

establishes continuous and systematic contacts with New

Jersey. In addition, as mentioned before, Rotax’s alleged

advertising is minimal and reaches a smal] amount of New

Jersey residents. As to Rotech’s distribution of certified

Rotax engines into the United States, plaintiffs have not

identified that any of these Rotax certified engines were in

fact distributed by Rotech into the State of New Jersey.

The alleged distribution of forty-three certified engines in

the United States does not establish contacts with New

Jersey that are continuous and systematic.

Finally, the remaining alleged contacts with New

Jersey regarding Rotax engines in snowmobiles, ATVs,

See-Doos and motorcycles are simply not of the continuous

and sy‘ tematic nature such that Rotax should expect to be

haled into a New Jersey court. Burger King, 471 U.S. at

474. Plaintiffs have not supplied this Court with any

evidence that Rotax actually distributed these engines into

the State of New Jersey. Jones v. Perry-Ray Geophysical,

Geosource, Inc., 954 F.2d 1061, 1068 (5th Cir. 1992), cert.

denied, 506 U.S. 867 (1992) (“The minimum contact

Pet. App. 36a

inquiry is broader and more demanding when general

jurisdiction is alleged, requiring a showing of substantial

activities in the forum state.”).

b. Kodiak

Plaintiffs assert that the following alleged contacts by

Kodiak with the forum State of New Jersey are continuous

and systematic: (1) Kodiak’s distribution agreement with

Rotax resulting in 1,000 engines distributed into the

United States annually; (2) Kediak’s advertising of Rotax

engines; (3) the warranty and product support it has to

supply to owners of Rotax engines; and (4) a supply

agreement for Rotax engines established with the New

Jersey company, Paladin. Plaintiffs’ Brief at 21-22. Re-

garding Kodiak’s responsibility to the customers’ warran-

ties and product support, plaintiffs argue that Kodiak

“would have” had contact with the owners of the 225

aircraft Rotax engines that the FAA reported service

difficulty, including three accidents reported in New

Jersey. Id. at 21.

This Court finds that under Helicopteros, plaintiffs

have failed to allege contacts by Kodiak that arc continu-

ous and systematic. Initially, the Court notes that Kodiak

does not have a place of businer™ in New Jersey and is not

licensed to do business in New Jersey. Helicopteros, 466

U.S. at 416. Next, as mentioned earlier, Kodiak’s distribu-

tion agreement with Rotax does not result in continuous

and systematic contacts with New Jersey. Furthermore, as

noted before, the advertising does not create continuous

and systematic contacts with New Jersey. Moreover, the

warranty and product support supplied by Kodiak is for all

engine owners it distributes to, not just New Jersey, and

Pet. App. 37a

requires that Rotech, in Canada, handle all the inquiries.

Also, plaintiffs cannot rely on assumptions as to whether

Kodiak “would have” had contacts with owners that

reported engine difficulty with the FAA. Plaintiffs have

not provided this Court with any evidence of any contact

by Kodiak with any of these engine owners, let alone any

engine owners in New Jersey. Finally, Kodiak’s agreement

with Paladin was entered into after plaintiffs filed their

complaint and there is no evidence that an informal

agreement existed between the two prior to the filing of

plaintiffs’ complaint. Reply Certification of Pascal Ron-

veaux { 3. This evidence is insufficient to obtain jurisdic-

tion over Kodiak. Metropolitan Life Ins. Co. v. Robertson-

Ceco Corp., 84 F.3d 560, 569 (2d Cir. 1996), cert. denied,

519 U.S. 1006 (1996) (“contacts are commonly assessed

over a period cf years prior to the plaintiff's filing of the

complaint.”). Therefore, based on the above, plaintiffs have

not proven general jurisdiction over Kodiak.

¢. Rotech

Plaintiffs contend that Rotech’s alleged continuous

and systematic contacts with New Jersey consist of: (1)

Rotech’s distribution agreement with Rotax for certified

engines in the United States resulting in forty-three

engines in New Jersey; (2) Rotech “would have” been

involved in assessing warranty claims in 225 Rotax

engines that the FAA reported were defective Rotax

engines, including accidents and incidents in New Jersey;

and (3) Rotech’s agreement with Kodiak to serve as Ko-

diak’s accident investigator, and to provide product sup-

port and service bulletins for the Rotax engines that

Kodiak distributes in North America. Plaintiffs’ Brief at

22-23.

Pet. App. 38a

Based on Helicopteros, this Court holds that plaintiffs

have failed to prove contacts by Rotech that are continu-

ous and systematic. The Court first notes that Rotech also

does not have a place of business or is licensed in New

Jersey. Helicopteros, 466 U.S. at 416. As mentioned earlier,

Rotech’s distribution of certified Rotax engines inte the

United States does not establish contacts with New Jersey

that are continuous and systematic. Plaintiffs again argue

that Rotech “would have” been involved in assessing

warranty claims and investigating accidents in New

Jersey based on FAA reported defective Rotax engines, but

as noted earlier, this is insufficient to establish personal

jurisdiction. Finally, Rotech’s accident investigations and

product support were to be conducted throughout North

America and not just New Jersey. The fact that Rotech

investigated one accident in New Jersey does not amount

to systematic and continuous contacts with the forum

State. Therefore, plaintiffs have failed to prove personal

jurisdiction over Rotech.”

” Because this Court has found that defendants did not purpose-

fully direct their actions to the forum State of New Jersey under the

stream of commerce specific jurisdiction theory and did not maintain

continuous and systematic contacts with the forum State of New Jersey

for general jurisdiction, there is no need for the Court to address

whether exercising personal jurisdiction over defendants would offend

traditional notions of fair play and substantia! justice. Burger King, 471

U.S. at 476. However, the Court notes that each defendant is « foreign

corporation with their principal places of business, ae well as their

employees and documents, in Austria, the Bahamas, and Canada “The

unique burdens placed up an one who must defend oneself in a foreign

legal systern should have significant weight in assessing the reason-

ableness of stretching the long arm of personal jurisdiction over

national borders.” Asahi, 480 U.S. at 114. In addition, this Court has

serious doubts as to any burden on plaintiffs to litigate this case outside

of the forum State of New Jersey because on December 30, 2002,

plaintiffs filed a lawsuit against these parties seeking the same relief in

(Continued on following page)

Pet. App. 39a

Ill, CONCLUSION

For the reasons expressed herein, defendants’ motions to

dismiss are granted. An appropriate form of order is filed

herewith.

‘ei Garrett E. Brown, Jr.

GARRETT E. BROWN, JR.,

U.S.D.

the Seuthern District of Florida Certification of Karen Warren, Exhibit

B. Therefore, even under Justice Brennan's and Justice Steven's

analysis from Asahi, this Court still does not have persona! jurisdiction

over defendants

Pet. App. 40a

APPENDIX F

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-12041-DD

THEODORE KOZIAL* and LOIS KOZIAL,*

Plaintiff-Appellants,

versus

BOMBARDIER-ROTAX GMBH,

MOTORENFARBRIK, et al.,

Defendant-Appellees.

On Appeal from the United States District Court

for the Southern District of Florida

(Filed Aug. 17, 2005)

BEFORE: EDMONDSON, Chief Judge, BLACK and

PRYOR, Circuit Judges

PER CURIAM:

The petition(s) for rehearing filed by the Appellants is

DENIED.

ENTERED FOR THE COURT:

/e/ J.L. Edmondson

CHIEF JUDGE

* The correct spelling is “Koziol.”

Pet. App. 4la

APPENDIX G

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONST. amend. V:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be ea witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

U.S. Const. amend. XIV, § 1:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

Federal Statutes:

28 U.S.C. § 1291:

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit)

shall have jurisdiction of appeals from al! final

decisions of the district courts of the United

States, the United States District Court for the

Pet. App. 42a

Canal Zone, the District Court of Guam, and the

District Court of the Virgin Islands, except where

a direct review may be had in the Supreme

Court. The jurisdiction of the United States

Court of Appeals for the Federal Circuit shall be

limited to the jurisdiction described in sections

1292(c) and (d) and 1295 of this title.

28 U.S.C. § 1294:

Except as provided in sections 1292(c), 1292(d),

and 1295 of this title, appeals from reviewable

decisions of the district and territorial courts

shall be taken to the courts of appeals as follows:

(1) From a district court of the United States to

the court of appeals for the circuit embrac-

ing the district;

(2) From the United States District Court for

the District of the Canal Zone, to the Court

of Appeals for the Fifth Circuit;

(3) From the District Court of the Virgin Is-

lands, to the Court of Appeals for the Third

Circuit;

(4) From the District Court of Guam, to the

Court of Appeals for the Ninth Circuit.

28 U.S.C. § 1406:

(a) The district court of a district in which is

filed a case laying venue in the wrong divi-

sion or district shall dismiss, or if it be in

the interest of justice, transfer such case to

any district or division in which it could

have been brought.

(b) Nothing in this chapter shall impair the ju-

risdiction of a district court of any matter

Pet. App. 43a

involving a party who does not interpose

timely and sufficient objection to the venue.

cludes the United States District Court for

the District of the Canal Zone; and “district”

includes the territorial jurisdiction of that

court.

Florida Statute:

FLA. STAT. 48.193(2):

A defendant who is engaged in substantial and

not isolated activity within this State, whether

such activity is wholly interstate, intrastate, or

otherwise, is subject to the jurisdiction of the

courts of this state, whether or not the claim

arises from that activity.

Pet. App. 44a

APPENDIX H

BOMBARDIER — ROTAX G.m.b.H.

INTERNATIONAL AIRCRAFT ENGINE

DISTRIBUTOR AGREEMENT

AGREEMENT entered into in Gunskirchen, Austria on

this 24 day of JULY, 2001.

between: BOMBARDIER — ROTAX G.m.b.H., a corpora-

tion organized under the laws of Austria and

having a place of business at Welser Strasse

32, A-4623 Gunskirchen, Austria (hereinafter

referred to as “MANUFACTURER’).

and: KODIAK RESEARCH LTD., a corporation

organized under the laws of the Bahamas and

having its principal place of business at PO

Box N7113, Marlborough House Cumberland

Street, Nassau, BAHAMAS and duly repre-

sented by its officers (hereinafter referred to as

“DISTRIBUTOR’”).

WHEREAS MANUFACTURER is engaged in the business

of manufacturing, selling and distributing PRODUCT

listed in Exhibit “A”, and DISTRIBUTOR desires to

purchase from MANUFACTURER and distribute said

PRODUCT through independent dealers,

THEREFORE, IT IS AGREED AS FOLLOWS:

1. DEFINITIONS

PARTIES: means the DISTRIBUTOR and the MANU-

FACTURER identified in the preamble.

TERRITORY: Distributorship rights granted pursu-

ant to this Agreement shall be for the TERRITORY

comprised of the following: The United States of

(a)

(b)

(c)

(d)

(e)

Pet. App. 45a

America, Central America and South America (includ-

ing Brazil, Chile, Argentina and Colombia).

DISTRIBUTOR DUTIES

DISTRIBUTOR shall ensure that it and the dealers

advertise, display, and demonstrate PRODUCT in-

cluding safety features of the PRODUCT in TERRI-

TORY, and shall encourage and assist the dealers to

advertise, display, demonstrate and sel] said PROD-

UCT to the public while employing sound and ethical

business practices, at suitable locations and with ade-

quate facilities.

DISTRIBUTOR shall clearly identify its place of busi-

ness as that of an authorized ROTAX Aircraft Engine

DISTRIBUTOR and/or ROTAX Aircraft Engine Repair

Center with suitable signs and displays. All signs, dis-

plays and other advertising materials shal] be submitted

before use to MANUFACTURER for approval.

DISTRIBUTOR shall ensure that the dealers make

the required pre-delivery set-up and inspection on

PRODUCT sold by them and also make al! inspections

or service work, which may be recommended by

MANUFACTURER from time to time, on PRODUCT

being used at the time in the TERRITORY. MANU-

FACTURER reserves its right to request reports of

such performance by DISTRIBUTOR and/or dealers.

DISTRIBUTOR and dealers shall utilize sufficient

and adequate facilities, tooling and adequately trained

personnel in the sales and service of the PRODUCTS.

DISTRIBUTOR is responsible to ensure dealers

comply with the mutually approved guidelines of D!S-

TRIBUTOR and MANUFACTURER.

(k)

(1)

(n)

(q)

Pet. App. 46a

DISTRIBUTOR shall keep, or cause dealers to keep,

separate registries for every repair or service claim

made under warranty for the PRODUCTS in the

TERRITORY. DISTRIBUTOR shall notify dealers to

comply with local laws pertaining to the servicing of

the PRODUCTS, including requirements relating to

work orders or estimates, as may be applicable. DIS-

TRIBUTOR shall grant and require the dealers to

grant access to such registries to MANUFACTURER

or any agent or employee MANUFACTURER may

designate.

DISTRIBUTOR shal! keep, or cause dealers to keep,

all parts replaced under warranty for a period of one

year after any warranty work is claimed, so as to en-

able MANUFACTURER to inspect them, before cred-

its, if applicable, are issued.

* * «

The Parties recognize the importance of the safety of

the PRODUCTS and those who come in contact with

them, including the public. Accordingly, the DIS-

TRIBUTOR warrants not to stock government sur-

plus, PMA or “bogus” parts for resale and not to

utilize such parts, or components thereof, in any work

done on the PRODUCTS. Moreover, DISTRIBUTOR

warrants to only stock approved replacement parts

and accessories sourced from or approved in writing

by the MANUFACTURER for use on the PRODUCTS.

For certified PRODUCTS these parts will also have to

he approved by competent Government authorities.

. - a“

MANUFACTURER agrees to indemnify, protect, and

save harmless DISTRIBUTOR against any liability,

losses, damages or expenses (including reasonable at-

torney fees) resulting from the failure of MANUFAC-

TURER to comply with its obligations under this

(s)

(a)

(d)

Pet. App. 47a

Agreement or at Law in the manufacturing of the

PRODUCTS.

DISTRIBUTOR undertakes to subscribe and keep in

force insurance coverage with minimum limits and

coverages as follows:

(i) aviation PRODUCTS liability insurance, the

limit of liability of such insurance shall not

be less the Three Million U.S. Dollars

($3,000,000.00) per occurrence;

* teal baal

WARRANTY

MANUFACTURER makes no representations or

warranties, expressed or implied, with respect to the

PRODUCT, except as provided in the written war-

ranty issued, from time to time, in accordance with its

business judgment. DISTRIBUTOR shall offer for sale

to the dealers and shal] ensure that the dealers offer

for sale to their customers, PRODUCT at least on the

basis of MANUFACTURER’s written warranty.

* * baal

DISTRIBUTOR shall supervise that the dealers honor

MANUFACTURER’s limited warranty and perform,

at no cost to the customer, any authorized repairs un-

der such warranty on covered PRODUCT being used

at the time in the dealer’s TERRITORY promptly and

efficiently. DISTRIBUTOR further undertakes to do,

or cause to be made, any verification, certification, re-

placement, maintenance and repairs MANUFAC-

TURER may require to be done on any Product,

unless MANUFACTURER indicates otherwise.

(e)

(f)

(g)

(b)

Pet. App. 48a

In consideration of reasonable warranty service work

that may be required on the PRODUCT, excluding re-

call campaign due to serial defects, DISTRIBUTOR

agrees to be fully responsible for all warranty work

and, MANUFACTURER hereby agrees to compensate

DISTRIBUTOR for such reasonable warranty work as

provided in Exhibit “D”.

DISTRIBUTOR shall be fully responsible to ensure

that the dealers or service network is adequately com-

pensated for any warranty or service campaigns per-

formed on PRODUCT during the warranty coverage

period. MANUFACTURER reserves its right to exam-

ine any warranty claim paid by the DISTRIBUTOR.

Within twelve (12) months from signature of this

Agreement, DISTRIBUTOR shall ensure that MANU-

FACTURER promptly receive the warranty informa-

tion, including the retail or end users name,

coordinates and the related Product’s serial number,

according to MANUFACTURENR’s procedures.

AFTER SALE SERVICE SUPPORT

* * *

DISTRIBUTOR shall maintain and require the

dealers to maintain a properly equipped Service De-

partment, including adequate inventory of spare

parts, capable of adequately servicing PRODUCT

with MANUFACTURER’s recommended equipment

and special tools. Both the DISTRIBUTOR and the

dealers shall respectively assume sole responsibility

for the workmanship of any maintenance or repair

work performed by them, or their respective employ-

ees, and shall not hold the MANUFACTURER re-

sponsible in any way if any failure or damage is caused

to the PRODUCT as a direct result of their acts or omis-

sions including but not limited to, DISTRIBUTOR or

(a)

(b)

(d)

Pet. App. 49a

dealer failure to perform service management or war-

ranty management or repairs as required.

MANUFACTURER expressly reserves the right to

communicate directly with purchasers of PRODUCT

to obtain any information regarding such PRODUCT

or the service provided with respect thereto.

* * *

DISTRIBUTOR further acknowledges and shall

ensure that the dealers acknowledge that DIS-

TRIBUTOR’s and the dealer’s right to use the trade-

marks listed, is strictly limited to such use as is

contemplated by this Agreement and insures to the

benefit of MANUFACTURER and not of DISTRIBU-

TOR or such dealers.

* * *

DISTRIBUTOR and the dealers may use in its firm

name, on signs, displays and other advertising or

promotional material, the name or any other trade-

mark or trade name of MANUFACTURER only in ac-

cordance with specific written permission from

MANUFACTURER, which permission may be re-

voked at any time with cause or withheld at MANU-

FACTURER’s discretion.

. * *

Pet. App. 50a

EXHIBIT “A”

PRODUCT

Rotax 447 UL SCDI Mod. 90.

Rotax 503 UL DCDI Mod. 90.

Rotax 582 UL DCDI Mod. 99.

Rotax 912 UL DCDI Mod. 94#81HP

Rotax 912 A (series 1, 2, 3 and 4) Mod. 95 JAR-22 certifi-

cation.

Rotax 912 F (series 2, 3 and 4) Mod. 96 FAR-33 certifica-

tion.

Rotax 912 ULS DCDI (series 2, 3 and 4) Mod. 99.

Rotax 912 S (series 2, 3, and 4) Mod. 99 FAR-33 certifica-

tion.

Rotax 914 UL DCDI (series 2, 3 and 4) Mod. 94.

Rotax 914 F (series 2,3 and 4) Mod. 97 JAR-E/FAR-33

certification.

and any derivatives thereof, including any fuel injected

models if any, if released during the Term by MANUFAC-

TURER for sale in the Territory.

(hereinafter referred to as “PRODUCT”).

EXHIBIT “D”

ADMINISTRATION OF WARRANTY

1. DISTRIBUTOR recognizes and agrees to be fully

responsible for all warranty work to be performed by

an authorized dealer on the PRODUCTS in the TER-

RITORY.

2. Moreover, DISTRIBUTOR undertakes to assume all

and any obligation, either commercial or financial,

imposed by or resulting from the application, in any

given country, of any mandatory national laws, which

may vary from country to country.

Pet. App. 5la

MANUFACTURER shall compensate DISTRIBUTOR

for reasonable warranty service work, at the estab-

lished labor rate and labor flat rate time and parts,

done by an authorized dealer as required under the

applicable Rotax aircraft engine INTERNATIONAL

LIMITED WARRANTY for the PRODUCTS.

MANUFACTURER reserves its rights to validate any

warranty work performed and to verify any warranty

claim submitted by an authorized dealer to a DIS-

TRIBUTOR.

It is understood that administration of warranty

process will be subject to review and change therein

from time to time by MANUFACTURER in the nor-

mal course of business.

Pet. App. 52a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRENTON DIVISION

THEODORE KOZIOL and : CIVIL ACTION

LOIS KOZIOL,

Plaintiffs,

vs.

BOMBARDIER-ROTAX

GmbH, [et al.)

Defendants . NO. 00-1938

Friday, December 13, 2002

Videotape examination of JOSEF FURLINGER, held

at the offices of Avitat Sky Service, 9785 Ryan Avenue,

Montreal, Quebec, Canada, commencing 10:44 a.m., on the

above date,

7 * >

(5) Q@: *** Mr. Furlinger, what is the name of the

company that employs you”

A: The name of the company is Bombardier-Rotax

GmbH.

Q: Can we agree that company for purposes of this

deposition is Rotax to make it easier for me?

A: Yes; for me easier, too.

G: Good.

And can you tell me where (6) that company is physi-

cally located?

Pet. App. 53a

A: The company is physically located in Guns-

virchen, Austria.

Q: And would you tell me what is the business of the

company, Rotax?

A: The business of the company Rotax is to produce

engines for various applications.

Q@: And would you tell the jury, in this case, I guess,

the court, what kind of engines Rotax produces?

A: Engines of ultra-lights; in this particular case, for

snowmobiles, ATV's, motorcycles and Sea Do’s.

Q@: A Sea Do is a water craft?

A: Water Craft.

Q: Does Rotax produce engines for manufacturers

other than Bombardier?

A: Yes.

Q@: Would you tell us the manufacturer for whom

Rotax produces engines?

A: It’s Abrillia and BMW.

Q: Now, Abrillia is an Italian motorcycle manufac-

turer, is it not?

[7] A: That's correct; it’s an Italian motorcycle

manufacturer.

. * 7

(10) A: My current position is Director for New

Business Development.

Pet. App. 54a

Q: How long have you held that position, Mr. Furl-

inger?

A: Since first of September this [11) year.

Q: Congratulations.

How about before the first of September?

A: Before, I was in the function of a V P., Retax

Aircraft Engines.

Q: Did you say V.P.?

A: Yes.

Q: Is that equivalent to vice president?

A: Correct.

Q@: And in that capacity Mr. Furlinger, what were

your duties?

A: I was responsible for the business for Rotax

aircraft engines only.

Q: How long were you responsible for the business of

Rotax aircraft engines?

A: Approximately, four years.

[14] Q@: Now, does Rotax sell engines to Bombardier

for use in Bombardier-manufactured water craft and

ATV's?

A: We sell engines to Bombardier, Inc., as | said,

before for snowmobiles, Sea-Do’s and ATV.

Q: Is a Sea-Do a water craft?

Pet. App. 55a

A: Yes.

@: And do you know that bombardier sells Sea-Do’s,

snowmobiles and ATV’s in the U.S.?

A: I'm not involved in the detail business with

Bombardier, so I can only assume that product will be

found in the U.S., can be found in the U.S. or would be [15]

used in the U.S.

[16] @: I would like to talk to you about aircraft

engines. When you use the term aircraft engines, what do

you mean?

A: I mean ultra-light engines.

Q@: And what is an ultra-light engine?

What do you mean by that?

A: It’s a very broad definition. It’s various from

different states, | mean countries. Depends on the national

regulations.

Q: All right. Is there some understanding you have

of the term ultra-light that you can give us?

A: Well, it’s a very small, light aircraft, noncertified,

which is limited in weight and capacity.

* * *

{19} Q: All right. Who is the authorized distributor

for the United &* -tes?

A: Kodis» ‘esearch Limited, Nassau Bahamas.

Q@: And does Kodiak Research Limited Nassau

Bahamas have a territory that includes the United States?

Pet. App. 56a

[20] A: Yes, Kodiak Research Nassau Bahamas - I

would say Kodiak —

Q: Let's call it Kodiak.

A: —- is a North and South American distributor for

Rotax ultra-light aircraft engines.

Q: Did the territory in the United States that Rotax

gave Kodiak for sale of Rotax engines include the state of

New Jersey?

A: We did not specify any specific state. But, it

means the entire US.

Q: It means all the states of the U.S., is that a fair

statement?

A: Thet’s a fair statement.

Q: What is Rotax — what is Kodiak [21] supposed to

do with the Rotax engines within the territory of the

United States?

A: He has to set up the proper after-sales service.

Q: Proper what service?

A: After-sales service.

Q: After-sales service. Okay.

A: And to support the product.

Q: All right. Now, would you explain to us what you

mean by “he has to set up proper after-sales service to

support the product”?

Pet. App. 57a

A: Well, provide documentation like any normal

distributor does; provide spare parts.

Q: How about service instructions, do you have to do

that, too?

A: Documentation which have been produced, yes.

+ . *

{22} Q@: And in the case of the United States, you

supply or sell these manuals, these spare parts catalogs

and service instructions to Kodiak?

A: Correct.

Q@: And Kodiak is supposed to supply them to cus-

tomers in the U.S.?

A: He can supply everywhere to his, within his given

territory.

[23] Q: All right. And his given territory is all the

states of the USA among others, correct?

A: South America; including North America.

Q: I understand.

I want to focus, if I can, on North America and, in

particular, New Jersey. But Kodiak’s responsibility in-

cludes supplying of spare parts catalogs and service

instructions to the states of the United States, is that

right?

A: Sorry?

Q: Does Kodiak’s responsibility include the sale or

supply of spare parts catalogs and service instructions

throughout the United States?

Pet. App. 58a

A: Yes.

Q: All right. Now, you mentioned also that Rotax

builds spare parts for its engines, is that correct?

A: Certain spare parts, yes.

Q: Does Kodiak supply, I’m sorry, does Rotax supply

or sell spare parts to (24) Kodiak as well?

A: Yes, Rotax sells spare parts to Kodiak.

@: Does Kodiak also have the responsibility to make

those spare parts available throughout the United States?

A: Yes.

Q: Including the state of New Jersey?

A: I would, as I said before, it has no restriction.

Q: All right, Now, how long has Kodiak performed

the responsibilities that you have described for us with

regard to the sale and support and sale of spare parts for

Rotax engines?

As—-Kodiak, Nassau Bahamas, approximately, since

92.

Q: Is Rotax satisfied with the performance of Kodiak

in the sale and support of Rotax engines in the U.S.?

A: Rotax is satisfied with the performance of Kodiak.

—_--—---

Q: All right. Now, does Rotax require certain per-

formance goals by Kodiak [25] in the sales of Rotax en-

gines?

A: Can you specify what you understand the per-

formance goals?

Pet. App. 59a

Q: By performance goals, I mean minimum sales in

dollars or marks, whatever.

A: Yes.

* * *

Q@: All right. And does Rotax expect Kodiak to

actively pursue the sales of Rotax engines and spare parts

in the United States?

[26] A: What do you mean with actively?

Q@: To work hard and aggressively to increase the

sales each year, if possible, of Rotax engines and spare

parts in the U.S.?

A: I think that is the duty of an authorized distribu-

tor to be, to sell product.

* * *

Q: All right. Now, is Kodiak expected to promote

Rotax engines in the [27] United States?

A: What do you mean promote? Can you describe

promote for me?

Q: Sure. Advertise and encourage the purchase of

Rotax engines for ultra-light use in the U.S. so as to sell as

much as he can of Rotax engines and spare parts in that

country.

A: I think this is his duty; and he, as a distributor,

he would do his best.

a * -

[28] Q: Isn’t there a written agreement between

Rotax and Kodiak?

Pet. App. 60a

A: Yes.

- al -

Q: Doesn't the written agreement require Kodiak to

establish a system of [29] dealers?

A: Yes.

- - *

Q: *** Were you aware that Kodiak did appoint

dealers in the United States for the sale of Rotax engines?

A: Yes.

Q@: And how many dealers did Kodiak appoint in the

United States?

A: By my actual knowledge, I think it’s four.

Q: Is one of those dealers a company in Mississippi?

A: Yes.

. . *

[31] Q@: Have you met all of the dealers?

A: Of the four dealers which I’m aware of, I have met

all four.

* - .

[34] Q: *** What is the reason that Rotax wants

Kodiak to establish dealers in the U.S.?

A: As I said before, the product support is one of

important thing.

Q: Tell us why that is.

A: Well, it’s to have an access to spare parts.

Pet. App. 6la

Q: Access to spare parts by whom?

A: By users.

Q@: You mean by someone who buys a Rotax engine

for an ultra-light if he needs spare parts, you want to be

able to have people who are available to supply those

spare parts? Is that part of product suppo: -

A: Yes.

” - *

{38} Q: Are there also service centers for Rotax

engines in the United States?

A: We have, as I said, dealers from Kodiak which

it’s, that is the four centers. [39] Those are service centers

from Kodiak.

Q: Are they the only service centers for Rotax

engines in the U.S., just those four dealers?

A: By my knowledge, yes.

* oF ba

[47] Q: *** Has Rotax ever suggested retail prices

for its products?

[48] A: We do have suggested retail price, but it’s

only recommendations.

* * *

[50] Q: *** I want to know what your meanin;:

Rotax’s idea is behind the suggested retail price.

A: That’s the idea that we have. It’s the price,

approximately the price what an end user should pay for

it.

Pet. App. 62a

Q: Is an end user a person who buys an engine, an

aircraft engine, for example, for his ultra-light?

A: Who buys a single engine for whatever kind of

use.

*” * *

[53] Q@: And in this document, it would be — let’s

start with the first page of it. It says, “Circular Letter,” the

cover page. Is that a document prepared by Rotax?

A: Yes.

Q@: And is that a document that was sent to Kodiak?

A: It’s sent to every Rotax authorized distributor for

ultra-light aircraft engines.

- al me

[56] Q: Well, does that mean that as of the time they

got this document, Kodiak has to use the logo, “Rotax

Aircraft Engines”?

A: I mean that is what says here is exactly what we

meant.

* a” «

Q: *** “Any offense against this ruling will result

[57] automatically in cancellation of the contract.” Have I

read that correctly?

A: Yes.

€: Cancellation of what contract?

A: Well, due to the fact that this went out to all our

authorized distributor.

Pet. App. 63a

@: Cancellation of what contract, the distributor

contract?

A: Distributor contract.

Q: Then, it goes on to say here under number 2,

“Publication, advertising insertions, et cetera, we want to

point out that vou as a distributor of Bombardier Rotax

Aircraft Engines are obliged to send us a copy of the

respective publications, advertise materials about Rotax

and products of Rotax, videos, statements to authorities,”

and then it says, “before publication.” Have I read that

correctly?

A: Yes.

Q@: Does that mean that if the distributor wants to

use any of those things, an advertisement, an article, a

video, or a statement to authorities, he has [58] to send it

to Rotax before he publishes it?

A: What is stated here, yes.

Q: That's what it says, yes.

A: That's what it says, yes.

. ~ .

[61 Q@: *** So, as far as you know, any authorized

Rotax service center for aircraft engines is one of those

four dealers we talked about?

A: Yes.

Pet. App. 64a

(64) Q: *** Well, is advertising placing of an article

or picture or writing in a trade publication that mentions

Rotax aircraft engines advertising to you?

A: Yes.

Q: Is that designed to help sell Rotax engines when

such advertisements are placed?

A: In general, it would help so.

Q: Are you aware of advertising for Rotax engines

placed in publications in the U.S.?

A: Yes.

Q: Can you name the publications that you are

aware of that have Rotax aircraft advertising in it?

A: Experimental Aircraft Association. That’s a flying

magazine.

* a *

{67} Q: Has Rotax supplied copy for use in advertis-

ing for Kodiak?

*” * al

A: With the letter when I see it, it was sent, one of

CD-Rom which is specifying the logo.

* + *

{68} Q@: *** If Kodiak wanted to use the Rotax logo

in an advertisement, he would first have to send that ad to

Rotax for approval, correct?

A: Yes.

Pet. App. 65a

Q: *** I will ~how you what has been marked for

identification Exhily . Furlinger-1. Do you recognize that

[69] document?

A: It’s a Bombardier-Rotax GmbH International

Aircraft Engine Distributor Agreement.

Q: Is that the agreement that’s between Kodiak and

Rotax?

A: What it says here, yes, Research Limited, Nassau.

Q@: It’s a document that was, that is between two

parties, Rotax and Kodiak?

A: Correct.

Q@: Do you know who drafted that document?

* * *

A: Well, it’s a lawyer who drafted it for Rotax.

x & «

{70} Q: *** Does Rotax have a limited warranty

that goes with the engines it sells?

A: Yes.

Q: And does Rotax — is that warranty in writing?

A: The warranty is in writing.

Q: And can you tell me if that written warranty goes

with the engines when the engines are sold?

A: Well, it’s a part of the operator’s manual.

Q: Okay. And that operator’s manual goes with the

engines, right?

Pet. App. 66a

A: Correct.

{71} Q@: *** And how does the end user make claim

under that warranty?

A: He has to go back to the authorized distributor.

That would be Kodiak if it’s the U.S.?

Kodiak.

Then, what does Kodiak have to do?

Well, Kodiak would handle the warranty.

Q: And then does Kodiak get reimbursed by Rotax

for what Kodiak did under the warranty?

re © PF ©

A: He can go back to us and get reimbursed.

{72} Q: All right. And who makes the decision how

much Kodiak gets reimbursed for the warranty?

A: Well, there is a standard procedure for which is

specified the parts and specified the labor, what’s labor

allowance. And according te this, it would be very clear

how much a reimbursement would be.

Q: Who established that reimbursement schedule?

A: Rotax.

Q: And who established the price of the part for

reimbursement?

A: Well, that’s — the parts is based on the spare

parts price.

Q: Which is established by Rotax?

Pet. App. 67a

A: Yes.

.Q: Now, does Rotax build any aircraft engines that

are certified by the Federal Aviation Administration?

A: Well, the engines are certified by the Austrian

Civil Aviation Authority.

Q@: Did Rotax go through the [73] certification

process with the Austrian Civil Aviation Authority?

A: Yes.

Q: What model Rotax engines are certified?

A: Well, 912A which is certified and 912F; the 912S

and 914F. There are a few others which are not anymore

in production since long time.

* . *

Q: Bilateral agreement. So the judge understands

what that is, is that an agreement that exists between

Austria and the United States that if the Austrian au-

thorities certify the engine, the Federal Aviation Admini-

stration will accept that [74] certification for U.S.

purposes?

A: I think that’s the general understanding.

Q: All right. So, would it be correct to say that at

least some of those engine models are certified aircraft

engines for U.S. use?

A: It’s a very broad definition, yes.

* * *

Q: So, Rotax obtained the certification in Austria?

Pet. App. 68a

A: In Austria, yes.

* * «

Q: *** Did the FAA give Rotax also evidence of

certification under U.S. law pursuant to the bilateral

agreement? :

[75] A: Yes.

* * *

(76) Q: Are you familiar with something called the

Experimental Aircraft Association?

A: Yes.

Q: Have you ever been to their annual gathering in

Oshkosh, Wisconsin?

A: Yes.

* taal ”

[79] Q@: Is Sun ’N Fun another gathering of the

Experimental Aircraft Association this time in Lakeland,

Florida?

A: Yes.

Have you ever been to Sun ’N Fun?

Yes.

How many times?

er Oe &

Maybe two or three times.

Q: Has there been a facility that advertised Rotax

engines at that Sun ’N Fun when you were there?

Pet. App. 69a

A: Yes, there has been a facility.

* ~ nd

{80} Q: *** In that stand or booth, have there been

Rotax engines?

A: So far as my recollection is, yes.

Q: Have there been Rotax advertising?

A: I saw Rotax there, but if it’s advertising, that is

the question of definition.

Q: Does it say Rotax?

A: Yes.

* * *

[§2) Q: *** I’m talking about a mechanical problem

where an owner, an end user, has a technical question.

A: Well, that’s the reason why we have authorized

distributors.

Q@: So, if there is an end user who has a techni !

problem with his engine, who does he first have to go to for

an answer under the Rotax distribution arrangement?

A: To an authorized distributor.

Q: Which in this case in the U.S. would be Kodiak?

A: Kodiak.

* * *

{83} Q: So, Rotax has an after-sales department.

That does what?

Pet. App. 70a

A: Does support or to the Rotax aircraft engines.

7 . *

Q@: If Kodiak contacts the after-sales department at

Rotax, Kodiak will get an answer?

A: Yes.

* al *

[84] Q@: Does Rotax require Kodiak to investigate

accidents involving Rotax engines?

A: Well, Kodiak is responsible for territory and this

includes warranty investigations also.

Q@: Kodiak has the responsibility according to Rotax

to investigate accidents (85) in its territory involving

Rotax engines?

A: Yes.

> a >

{93} Q: I thought that Kodiak had North America as

its terntory.

A: Well, Kodiak is the authorized distributor for

North and South America, excluding Canada.

{96] Q: Does Mr. Tucker investigate accidents

involving Rotax engines in the U.S.?

A: Well, in this case what we talking today, he is the

investigator by the NTSB.

* *. .

Pet. App. 7la

{99} Q: Who is it who designs Rotax engines, aircraft

engines”

A: Rotax.

Q: Who is it that selects the materials for use in

Rotax engines, aircraft engines?

A: Rotax.

Q: Who is it writes the operator’s [100] manual for

Rotax aircraft engines?

A: Rotax does.

Q: Who is it that writes the warranties for Rotax

aircraft engines?

A: Rotax.

Q: Who pays for the warranty of the Rotax engines?

A: If it’s a warranty, we give a credit.

Q: Who is it that makes parts for Rotax aircraft

engines?

A: Rotax.

Q: Who is it that designates the territories for Rotax

aircraft engines’ sales?

A: Rotax.

Q: Who is it that determines whether an aircraft

engine has to be recalled for modification?

* * *

A: Rotax will determine.

Pet. App. 72a

{101} Q@: Who is it who issues Service Bulletins and

literature for Rotax engines?

A: Rotax.

Q: Who is it that established the loge for Rotax

aircraft engines?

A: Rotax.

Pet. App. 73a

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRENTON DIVISION

THEODORE KOZIOL and

LOIS KOZIOL, CIVIL ACTION

an NO. 00.1938 (GEB)

Plaintiffs,

vs.

BOMBARDIER-ROTAX GmbH,

let al.]

Defendants.

DEPOSITION OF: PHILLIP JOHN LOCKWOOD

DATE: Tuesday, December 3, 2002

TIME: 10:07 a.m.

PLACE: The Reporting Company

201 North Magnolia Avenue

Orlando, Florida

* * *

{13} Q The question that I think I asked, and your

response was, if you were going to try to [14] contact the

company, how do you go about doing that, and you said it’s

all through — did you say Rotech?

A It’s Kodiak Research.

Q Okay. So all of your communications to the factory

in Austria go through Kodiak Research.

A For uncertified engines

Pet. App. 74a

Q Okay.

A Which the 582 would be, the example you're using.

Q Right. Okay.

* * *

(15) Q So if you want to put a Rotax engine - if one

of your customers wants to put a Rotax engine in an

experimental or ultralight aircraft, your only source of

obtaining a new one of those engines is through Kodiak

Research.

A An experimental, yes.

* * «

[19] Q Where do they come from?

A They come from a freight forwarder down in South

Florida.

7 *. *

Q *** So what you do know is that you cal] Kodiak,

and you -— or you fax or you e-mail an order to Kodiak, and

at some time thereafter, an engine shows up in Sebring,

Florida.

A Correct.

7 + .

[21] Q Is there a dealership network set up through

Kodiak to receive and sel] the engines?

A No, Kodiak — no. Kodiak will only sell to myself

and the handful of other Rotax service center type opera-

tions.

Q Okay. And they’re called service centers?

Pet. App. 75a

A We call ourselves service centers, yeah, because

we specialize in the light aircraft parts and accessories

that the aircraft that use Rotax need, including the parts

for the engines themselves.

* > *

(26] Q *** Does the factory or does Kodiak send

representatives to any of the air shows, that you’re aware

of?

A I think they rely on us, for the most part, to

represent the product. But —

(27) Q When you say us, you mean the service

center?

A Correct.

Q Okay. Go ahead.

A But they have — Kodiak has had people at the air

show to help with technical support and that sort of thing

before.

Q Okay. And do they — when they come to an air

show, let’s say where you are, do they operate out of your

location, or -

A It’s changed from year to year.

Q So there are times when they have a separate

booth that they set up?

A Yes.

Q And when they do that, what — do they use the

name Kodiak Research as their booth?

A I believe so.

Pet. App. 76a

Q At the last Sun’n Fun that you went to, did Kodiak

have a booth there?

A Yes.

Q Okay. And you also had a booth.

A Correct.

Q How about any of the other service centers, did

they have a booth?

A Yes. Yes.

* * *

[31) Q Now, we talked about the four other service

centers for the uncertified aircraft engines. Is there any

understanding, whether it’s written, verbal, or otherwise,

with regard to the distribution territory of those service

centers?

A We tend to operate primarily in our region of the

United States. But we are — and that’s where most of our

business is, is in the Southeastern US.

Q So Lockwood is primarily southeast.

A Yeah.

Q California Power Systems would be the Pacific.

A Right.

* * *

[46] Q *** What else do they give you?

A Kodiak supplies the sales brochures for shows.

That’s it.

Q Is there a price list that Kodiak prepares?

Pet. App. 77a

A Yes.

Q And they send that to you how often?

A Electronically.

Q Okay.

A There's no set time frame. Whenever it changes

Q What other documents do they send to you elec-

tronically?

A Service bulletins.

* > *

[51] Q *** Lockwood Aviation Supply is a dealer of

Rotax engines, correct?

A Yes.

[56) Q Are there instructions that you've received

from any entity regarding the use of the logo?

A Kodiak has told us we have to use that logo, and

that’s all we can use.

* > *.

Q Did anybody provide the logo to you in any format,

whether it’s online?

A Sure.

Q Okay. So that you had the right size and dimen-

sions and the fonts.

A Absolutely.

Pet. App. 78a

Q Okay. Who provided it to you?

[57] A Kodiak.

Q In the sale of Rotax engines, do you use any other

logo?

A No.

7 + *

{63} Q How about warranty work?

A We have to provide warranty work.

Q And how is that handled?

A A customer would contact us with a preblem, we

would determine whether or not it’s warrantable. Any we

would make the repair normally and make a claim to

Kodiak.

. * *

{71} Q All right. So when you talk to Eric about

problems you're having out in the field as a ser e center,

he knows that these are problems that are involving

aircraft engines.

A Correct.

> * +

[72] Q Now, when you met at the factory, and you

talked to Josef Furlinger, he knew also that you were

buying aircraft engines.

. ad *

A _ Iwould make that assumption.

Pet. App. 79a

Q Well, I mean, based on the conversations you had,

was it clear to you that he knew that you were taking the

— these Rotax engines and putting them in ultralights?

A Correct.

a * *

{82} Q Are you given any incentives in the sale of the

Rotax engines with regard to getting more money if you

sell more engines, getting a higher percentage if you sell

more engines, things like that?

A They have — yeah, they will give a credit to our

account of some arbitrary amount, and I have no idea how

they come up with it, based on the service center sales

relative to the other service centers.

. . ”

[90] Q When was the last one?

A It was in April of 2000 — of 2002.

Q Were there representatives there from each of the

service centers?

A Yes.

Q Where was it held?

A Inthe Bahamas.

* al *

A It was held in a leased office at the — at an FBO

right at the airport in Nassau.

ad * *

Pet. App. 80a

[91] Q Who from Kodiak, that you can remember?

A Pascal and Eric.

Q_ And just tell me generally some of the discussion

that — some of the topics that were discussed.

A Service bulletins were discussed. They asked for

input from us. They gave us feedback on how they felt we

were performing, the service centers. And they handed out

awards based on -

Q For?

A For performance in different areas, technical

support, overall service center performance, air show

support, web page support. That sort of thing.

Q Did Lockwood Aviation Supply receive any

awards?

A Yes.

. > *

[98] A The only compensation I get for warranty is -

you know, it’s directly from Kodiak. They have a service

dollar deal, which is very vague, and they use some for-

mula that I mentioned before which I have no idea how

they come up with it. But it’s based on your overall per-

formance, warranty support, technical support, air show

attendance, and they give some credit based on that. It's a

relatively small amount.

[99] Q Okay. What kind of credit did you get?

A There, again, | would have to guess, but I think

it’s in the neighborhood of ten thousand dollars.

Pet. App. 8la

Q And what your talking about is if you — if you have

a certain satisfaction level with the customers for the

warranty work, and you're meeting whatever criteria they

set out, and you're doing the other service related things,

like attending air shows or trade shows or things like that,

them you're encouraged to do that by getting a credit back

from —

A Kodiak.

Q -— Kodiak? And in your case, it was about ten

thousand dollars.

A (Witness nods head.)

> * sl

{1109} Q Based upon your conversations with Mr.

Furlinger, your observations of what they were doing in

there, he knows that — that Rotax makes [110] uncertified

aircraft engines, correct?

A Yes.

Q And he knows that you, amongst others, were part

of the network for distribution of those engines in the

United States

A Yes.

Q Do you have any input into the estimates that are

made of the number of engines that they are going to need

to manufacture? For instance, “We sold sixty-five engines

this year.”

A The limit to my input is how many engines |

expect to sell.

Q Okay

Pet. App. 82a

A ‘“ihat’s it.

Q And that input is where?

A Kodiak.

« a *

[111] Q@ Has any representative of Kodiak ever been

in your business? By that, I mean, visited your business.

A_ Eric Tucker.

Severa: times?

Yes.

And how about the other principal?

> © -

I believe Pascal has been to my facility

. * *

Pet. App. 83a

APPENDIX K

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THEODORE KOZIOL and

LOIS KOZIOL

Plaintiffs,

CIVIL ACTION

NO. 00-1938(GEB)

vs.

BOMBARDIER-ROTAX

GmbH, MOTORENFABRIK;

fet al.)

Defendants.

Aa a oS Se

ORAL DEPOSITION

PASCAL RONVEAUX

APRIL 30, 2002

* * *

[14] Q. Now, the question that was pending was

whether you were the founder of Kodiak Research, Lim-

ited in 1991?

A. Iam the president of it, yes.

(22) A. Technical services and accident investigation,

also and warrantee handling, warrantee evaluation,

warrantee examination, whatever you want to cal] it.

Q. Okay. And how long has he done that for you?

A. Same like Mr. Tucker.

Pet. App. 84a

Q. Since, perhaps, the mid 1990s?

A. Right.

* > >

{27} Q. Were you ever covered on the Bombardier-

Rotax’s policy in 1999?

A. I believe so, but I don’t know if —

Q. When did you cease being named or having

insurance coverage under the Bombardier-Rotax’s policy?

A. I believe January 2001.

[34] Q. Do you sell engine components or engines to

maintenance facilities?

A. No, we have service centers.

. * .

Q. How about in the United States?

A. I am getting to it. I am trying to put them in

alphabetical order, that’s all. California Power System

Inc., in California; South Mississippi's Ultra Light Inc., in

Mississippi; LEAF Inc., Leading Edge Areas Foil in which

is Wisconsin; and the last one is Lockwood, L-O-C-K-W-O-

O-D, Aviation Inc., in Sebring, Florida, I believe to the

best of (35) my knowledge is the latest service.

Q. The California Powers System, Southern Missis-

sippi Ultra Light, LEAF, and Lockwood are the four in the

United States?

A. Yes, they are.

Pet. App. 85a

Q@. Are they also authorized distributors for the

engines and engine components?

A. They are service centers, they can sell engines,

yes.

* * *

Q. Now, let’s go back to the Rotax aviation engines

that are distributed by your company. Can you tell me

what model you distribute?

A. Yes.

Q. And what models are they?

A. Rotax 447 UL, Rotax 503 UL, Rotax 582 UL, and

Rotax 912 series.

* * *

[43] Q. How were they physically shipped? Are they

crated or how do they leave Gunskinchen?

A. They are in boxes.

Q. Okay. Do they come with any manuals or warran-

tee documents or is it just the engines themselves?

A. They come with the manuals and a warrantee

card.

Q. And what do the warrantee cards say? Do they

identify your company as the warrantee administrator?

A. At the time, | believe so.

[44] Q. At that time?

A. Well, I don’t “now for that time. I believe so, yes.

Q. Has there been a change?

Pet. App. 86a

A. Not that I remember.

Q. Okay. And what kind of manuals would come in

the boxes with the engines?

A. Operator manuals, in English and in German.

* ™ *

Q. *** then that would happen when the engines

would come to The Bahamas? What would you do with

them, if anything, after they were shipped and you re-

ceived them in The Bahamas?

A. We would just forward them to the service center

or the OEM.

Q. You didn’t open them or inspect the boxes?

A. No.

Q. Now, did you handle customs, or how do you

handle customs? Do you pay duty on the engines?

A. There is no duty on aircraft engines. There is no

duty on aircraft engines, just on some parts sometimes.

* * *

[64] Q. You state in paragraph 3 that, “Kodiak has a

supply arrangement with Paladin Industries, Inc., of

Pennsauken, New Jersey. Kodiak did not enter into this

arrangement until after plaintiffs filed their complaint.”

When did the plaintiff file their complaint?

* * *

A. About year 2000.

> * *

Pet. App. 87a

(65) Q. When did you enter into your supply ar-

rangement with Paladin Industries?

Mm + 7

A. *** I] know it was after 2000.

Q. Okay, now, what do you mean by “supply ar-

rangement”?

A. Wesold engines to them.

cd = «

Q. *** And do you keep a file on Paladin Industries

as part of your record?

[66] A. We keep it on computer, yes.

* * *

Q. *** Let’s go to paragraph 4. “Kodiak provides an

information website from The Bahamas that may be

accessed in New Jersey.”

What do you mean by that?

* * *

A. That we have a website accessible from anywhere

in the world.

Q. What do you mean by “informational website”?

A. You have information on where to buy the parts

or the engines.

~ Lal *

{78} Q. ** * Now, I take it even though I don’t have

the document in front of me that the OEM requirements

Pet. App. 88a

require companies such as Paladin Industries to maintain,

it says, a requirement of $50,000 in sales?

A. Yes.

Q. Okay. Is that engine sales, part sales; what

exactly do you mean by requirement of $50,000 in sales?

A. Engine sales.

. *« +

[84] Q. Do you have a breakdown, a monthly break-

down on how many engines are shipped in and out of The

Bahamas; any Bombardier-Rotax ultra light engines?

. cal ~

MS. SLAVIN: Yes, I just want to know how

many. Are we talking about a thousand, or just what we

are looking at.

THE WITNESS: Per month?

* * *

Q. How about in 1999, 2000?

A. Your estimate is about right.

~ ~ 7

[85] A. You said a thousand engines.

Q. My, I guess pretty well, then. Is that figure true

today?

A. Yes, per year, yes.

Q. Now, is it your testimony, if I understand cor-

rectly, that your company has not sold any Bombardier

aircraft engines to anyone in the United States other than

Pet. App. 89a

the original equipment manufacturer or authorized service

center?

A. Our company only sells to North and South

American service centers or OEMs, yes, that is correct.

Q. And the same is true for replacement engine

parts s that correct only OEMs or service centers?

A. Yes.

* * *

Q. *** Have you ever been to Sun and Fun in

Lakeland, Florida?

A. Yes, I have been there.

Q. And why were you there?

A. To visit my OEM and service centers.

Q. *** how many times have you gone to Sun and

A. Anumber of times.

* * *

Pet.App. 90a

APPENDIX L

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

Case No. 02-61807-CIV-COHN/SELTZER

THEODORE KOZIOL and

LOIS KOZIOL,

Plaintiffs,

vs.

BOMBARDIER-ROTAX [et al]

GmbH MOTORENFABRIK,

Defendants. /

AFFIDAVIT OF ALAN J. BURROWS [...]

ALAN J. BURROWS, declares under penalty of

perjury under the laws of the United States, that the

statements contained in this Affidavit in Further Support

of Kodiak’s Motion to Dismiss the Complaint for Lack of

Personal Jurisdiction to be true and correct.

1. I, ALAN J. BURROWS, am the President of

Tropix Air Limited (“Tropix Air”), which is a corporation

formed under the laws of the Bahamas, having its princi-

pal and only place of business in Nassau, Bahamas. I am

also an officer of Tropix Express, Inc., a Florida corpora-

tion.

* * ~

6. When Tropix Air is hired to deliver a shipment to

the United States it delivers the shipment to Miami,

Florida, at which point, Tropix Express, Inc. (“Tropix

Express”), a separate Florida corporation created in or

Pet.App. 9la

about 1995, receives the shipment and delivers it to the

location within the United States.

8. Tropix Air has been hired by Kodiak Research,

Ltd. (“Kodiak”) to deliver aircraft engines to the United

States and elsewhere.

* * bal

13. Tropix Air uses Miami, Florida as its port of

entry for all shipments into the United States and did so

for more than five years before Tropix Air shipped any

engines for Kodiak.

. . 7

18. Tropix Air offers residents of the Bahamas the

service of collecting mail and parcels in the United States

and then delivering the mail and parcels to its customers

in the Bahamas.

19. This service offered by Tropix Air involves

having mail and parcels delivered to customers “care of”

Tropix Express. The mail and parcels are then forwarded

by Tropix Express to Tropix Air and then Tropix Air

delivers the mail and parcels to the respective customers

in the Bahamas. * * *

20. Tropic Air has hundreds of customers for whom

mail and parcels are collected in the United States and

delivered in the Bahamas. This service is popular because

many residents of the Bahamas consider the postal service

in the Bahamas to be less speedy and reliable than the

U.S. Mail.

21. The Ronveaux family, including Pascal Ron-

veaux, his young daughter Charlotte Ronveaux and his

Pet.App. 92a

wife, Brigitte M. Ronveaux, uses our services from time to

time.

* aad «

FURTHER AFFIANT SAYETH NAUGHT.

I declare under the penalty of perjury under the laws

of the United States of America that the foregoing is true

and correct.

Executed on the 13 day of November, 2003.

/s/ Alan J. Burrows

Alan J. Burrows, President

Tropix Air Limited

Pet. App. 93a

APPENDIX M

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRENTON DIVISION

THEODORE KOZIOL

AND LOIS KOZIOL, CIVIL ACTION

Plaintiffs, NO. 00.1938 (GEB)

vs.

BOMBARDIER-ROTAX GmbH,

[et al.]

Defendants.

. - *

DEPOSITION OF: RONALD LAVON SMITH

DATE: Tuesday, December 3, 2002

TIME: 12:49 p.m.

PLACE: The Reporting Company

201 North Magnolia Avenue

Orlando, Florida

~ ” *

[49] Q *** Do you know if Kodiak has warehouse

base or storage space in locations outside of the Bahamas?

A Do they have warehouse space?

Q Yeah.

A As far as I know, they do.

Where?

Pet. App. 94a

In Fort Lauderdale.

¥ * *

[50] A I went to pick up some old engines, or some

new engines that had been — that was in a flood that had

water damage for Quicksilver Finterprises. I went down

and picked them up.

there?

> © & © ©

Was that an aircraft hangar that they had down

I assume it was.

The old location, was it at the airport?

Yeah, Executive Airport.

*** when you buy an engine, do you pay freight?

Correct.

From where to where?

Fort Lauderdale.

So it — again, you told me that you're buying your

engines from Kodiak, so it’s their obligation to get the

engine to Fort Lauderdale?

(Witness nods head.)

Yes?

Correct.

Pet. App. 95a

APPENDIX N

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRENTON DIVISION

THEODORE KOZIOL

AND LOIS KOZIOL, CIVIL ACTION

Plaintiffs, NO. 00-1938 (GEB)

BOMBARDIER-ROTAX GmbH,

let al.)

Defendants.

DECLARATION OF DANIEL D. BARKS

I, Daniel D. Barks, under penalty of perjury do declare

the following to be true:

* . *

3. I have attended the air show, known as “Sun-N-

Fun” at Lakeland Linder Regional! Airport, adjacent to the

town of Lakeland, Florida for the past four years.

4. From 1998 until the present, upon each visit to

“Sun-N-Fun” there has been a display tent erected in the

vendors and manufacturers display area, identified as

ROTAX.

- . *

5. From 1998 until the present these tents have had

on display engines manufactured and sold by ROTAX, and

personnel uniformed in ROTAX sport shirts providing

information on sales and technical specifications;

* o *

Pet. App. 96a

7. During Sun-N-Fun events starting this year on

Wednesday April 2, 2003, I personally observed the

ROTAX tent in operation again and saw and identified

Erick Tucker working inside the tent, meeting ard greet-

ing customers.

* . *

I declare under penalty of perjury that the foregoing is

rue and correct to the best of my knowledge.

Executed this 13th day of May, 2003.

/s/ Daniel D. Barks __

DANIEL D. BARKS

Pet. App. 97a

APPENDIX 0

THEODORE KOZIOL CIVIL ACTION

and LOIS KOZIOL, No. 00-1938 (GEB)

Plaintiff,

v. DECLARATION F

BOMBARDIER-ROTAX RmarGa ad.

GmbH, [et al.] —_ 4

Defendants.

DECLARATION OF BMW

OF NORTH AMERICA, LLC

| ROBERT GOODHEART, declare as follows:

}. I am the manager of the Aftersales Depart-

ment of the Motorcycle Division of BMW of

North America, LLC (“BMW NA”). I have

been employed by BMW NA since 1988.

2. Bombardier-Rotax GmbH & Co. located in

Gunskirchen, Austria builds a 650cc single

cylinder motorcycle engine (the “Rotax En-

gine”) for BMW Motorad in Germany.

3. BMW Motocrad imports F650 model motor-

cycles equipped with the Rotax Engines to

BMW NA in the US.

4. The F650 mode’ motorcycles with Rotax En-

gines were first available in the US in 1996

and are still distributed by BMW NA today.

5. BMW of North America has distributed the

F650 motorcycles containing the Rotax En-

gine to motorcycle dealers located within the

US as well as the state of New Jersey since

1996.

Pet. App. 98a

I deciare under penalty of perjury under the laws of the

State of New Jersey that the foregoing is true and correct.

Executed this day of January 2003.

/s/ Robert Goodheart

Robert Goodheart

Pet. App. 99a

APPENDIX P

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

TRENTON DIVISION

THEODORE KOZIOL : CIVIL ACTION

and LOIS KOZIOL, : No. 00-1938 (GEB)

Pl . tiff. : °

BOMBARDIER-ROTAX

GmbH, [et al.)

Defendants.

DECLARATION OF SHERI STERN

Sheri Stern does hereby declare and state:

1. I am the Office Manager of Glider Rider, Inc.

located at 1085 Bailey Avenue, Chattanooga, TN 37404.

2. Glider Rider, Inc. is the publisher Ultralight

Flying! magazine.

3. Since 1995, Lockwood Aviation, Inc. purchased

advertising space, which marketed Rotax engines and/or

the Rotax name, in our publications 97 times.

4. Since 1995, South Mississippi Light Aircraft, Inc.

purchased advertising space, which marketed Rotax en-

gines and/or the Rotax name, in our publications 84 times.

5. Currently, Glider Rider, Inc. distributed U/-

tralight Flying! magazine to 187 subscribers in the State

of New Jersey.

Pet. App. 100a

8. This declaration is based upon my personal

knowledge of our business and the records that have been

subpoenaed.

I declare under penalty of perjury that the foregoing is

true and correct.

Executed this 29th day of November, 2002.

/s/ Sheri Stern

SHERI STERN

Pet. App. 101la

APPENDIX Q

KOZIOL v. ROTAX: Florida Bombardier Dealers

Company Name Phone Fax

Action Jet Ski West 941-484-8880 | 941-488-5636

B&H Motorsports 941-355-0323 | 941-355-2732

Barney's Motorcycle Sales, Inc. | 727-576-1148 | 727-578-2105

Beach Sportcycles, Inc. 521-631-5571 | 321-636-9283

Boats-R-Russ 941-748-9648 | 941-746-2291

Brevard Watercraft Inc. 321-242-0101 | 321-253-1014

Broward Motorsport 954-436-9905 | 954-433-0663

Citrus Cycle Center 352-726-6876 | 352-726-0110

Cycle Riders Suzuki of Orlando | 407-295-0045 | 407-578-6823

Daytona Fun Machines 386-238-0888 | 386-253-6796

First City Honda Sea-Do 904-829-6416 | 904-808-8750

Florida Sports Cycle & Marine | 772-287-1850 | 772-287-6852

Gulf Coast Marine Center, Inc. | 941-629-9669 941-629-9992

Inner-Coastal Marina, Inc. 321-725-0090 | 321-723-3996

Jet Ski of Miami 305-634-5754 | 305-634-5045

Ocala Motor Sports 352-732-8531 | 352-620-8920

Palm Beach Motorcycles, LLC 561-683-1642 561-683-1877

Perry Performance Group, Inc. | 954-929-1737 | 954-929-1737

Power Toys, Inc. 954-974-6100 | 954-917-8584

Powersports of Clearwater, Inc. | 727-536-4791 | 727-535-0632

Powersports of Cutler Ridge 305-258-2000 | 305-258-4535

Powersports of Delray 561-274-9074 | 561-265-1012

Powersports of Ft. Lauderdale | 954-467-0990 | 954-467-1015

Powersports of Kissimmee, Inc. | 407-847-2453 | 407-518-1997

Powersports of Naples, Inc. 239-594-5535 | 239-594-2906

Powersports of North Miami 305-651-4999 | 305-651-3547

Powersports of Tampa, Inc. 813-968-7888 813-968-8448

‘Siminole Power Sports 407-322-3253 | 407-330-0346

Sky Powersports 863-676-2245 | 863-676-4283

Sky Powersports of Lakeland 863-682-4607 | 863-682-7082

Sky Powersports of Lakeland 863-682-4607 | 863

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