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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## 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

3

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

4

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.

5

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.

5

|

* Pet.App. 103a-104a.

* Pet.App. 53a-55a

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

6

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.

7

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.

8

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.

9

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.

10

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.

11

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.

12

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.

13

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

14

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.

15

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

16

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.

17

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

18

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.

19

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 @

20

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.

21

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.

22

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.

23

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:

24

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.

25

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.

26

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.

27

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.

28

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 -

ia

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.

(c) As used in this section, “district court” in-
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 su

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0475%3A1. Public record. Not legal advice.